United States v. Scott Griffith , 913 F.3d 683 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 18-1310
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SCOTT B. GRIFFITH,
Defendant-Appellant.
Appeal from the United States District Court for the
Central District of Illinois.
No. 4:16-cr-40010-SLD-1 — Sara Darrow, Judge.
ARGUED NOVEMBER 7, 2018 — DECIDED JANUARY 22, 2019
Before ROVNER, SYKES, and BARRETT, Circuit Judges.
ROVNER, Circuit Judge. Scott B. Griffith pled guilty to a
three-count indictment that charged him with receiving,
distributing, and possessing child pornography. The district
court sentenced him to 240 months’ imprisonment on each
count, to run concurrently, as well as a fifteen-year period of
supervised release. On appeal, he asserts that the district court
2 No. 18-1310
committed procedural error in calculating the guidelines
range, and that his resulting sentence is substantively unrea-
sonable. We affirm.
I.
Griffith was charged with: (1) receiving four digital images
of child pornography, in violation of 18 U.S.C.
§§ 2252A(a)(2)(A) and 2252A(b)(1); (2) distributing three digital
images of child pornography (different than those received), in
violation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(b)(1); and
(3) possessing visual depictions of child pornography in
addition to those described in the receipt and distribution
counts, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and
2252A(b)(2). All tolled, Griffith’s crimes included 477 photo-
graphs and eleven videos of unspecified length. All counts
were alleged to have occurred during a three-month period
near the end of 2015, and all involved the use of Twitter
accounts. Each time Twitter detected child pornography on
Griffith’s account, the company closed the account and
reported the inappropriate activity. Griffith created more than
twenty-five Twitter accounts during that three-month period
in an attempt to thwart the company’s efforts, directing his
followers from one account to the next.
Prior to committing these crimes, Griffith, who was fifty-
two years old at the time of his arrest, had amassed enough of
a criminal history to land him in Category V, only one level
below the top of the scale. At the age of twenty, he had
sexually abused a child under the age of thirteen, a conviction
that was too old to be counted for criminal history purposes.
The vast majority of his remaining criminal history was
No. 18-1310 3
composed of driving offenses and thefts, some minor and some
more serious. Additionally, two women had sought and
received orders of protection against Griffith after he threat-
ened them. His criminal record prior to this offense spanned
nearly thirty years and a dozen of the previous offenses were
either too old or too minor to be included in the calculation of
his criminal history.
The Presentence Investigation Report (“PSR”)1 noted that
the base offense level for the three grouped counts was 22,
citing U.S.S.G. § 2G2.2. An analysis of specific offense charac-
teristics added 18 levels for a total of 40. In particular, the PSR
added two levels under section 2G2.2(b)(2) because the
material involved a prepubescent minor. Griffith solicited child
pornography on his Twitter pages in exchange for access to his
own collection, leading to a five-level increase under section
2G2.2(b)(3)(b), for distributing the pictures in exchange for
non-pecuniary, valuable consideration, a transaction some-
times called a “peer-to-peer exchange.” Four levels were added
under section 2G2.2(b)(4)(A) and (B) for material that depicted
violence and sexual abuse or exploitation of a toddler. The use
of a computer contributed two levels under section 2G2.2(b)(6).
Finally, each of the eleven videos was treated as equivalent to
seventy-five images which, when added to the 477 photo-
graphs, pushed the total images over 600 and added five levels
1
There are two versions of the PSR in the record, an original and a revised
version. The revised version includes an addendum that details the
defendant’s objections to the first PSR and the government’s response, as
well as some other revisions and recommendations. For the purpose of
calculating the offense level and criminal history category, the PSRs are
essentially the same. We will note any differences when relevant.
4 No. 18-1310
under section 2G2.2(b)(7)(D), for an adjusted offense level of
40. After deducting three levels for acceptance of responsibil-
ity, the PSR set the total offense level at 37. Both versions of the
PSR noted that the guidelines range for a total offense level of
37 and a criminal history Category V is 324 to 405 months’
imprisonment. Both PSRs took the position that Griffith’s prior
conviction for sexual abuse qualified him for enhanced
mandatory minimums under 18 U.S.C. § 2252A(b)(1), noting
that the enhanced terms for Counts I and II were fifteen to
forty years. Count III carried a minimum of ten years and a
maximum of twenty years, assuming that the enhanced
penalty applied. The revised PSR incorrectly stated that,
without the enhanced mandatory minimums, the guidelines
range would be 240 months. Neither party noticed that error
until the sentencing hearing, as we discuss below.
Griffith filed a number of objections to the PSR in the
district court, largely falling into three categories. First, he
objected to the application of the “specific offense characteris-
tics” provisions that added eighteen levels to the base offense
level. He contended that the additional levels assessed against
him were based on “arbitrary, unreasonable and unwarranted
sentencing factors which are inherent in the offense of convic-
tion, and patently inconsistent with the purposes of Title 18
U.S.C. Section 3553(a).” R. 18 at 1–2. He complained that the
“rote application” of those provisions “yields a draconian
guideline sentencing range of 324–405 months (27 to 33.75
years),” a result he characterized as “wholly incompatible”
with the section 3553(a) factors and “offensive to the ends of
justice.” R. 18, at 2. The crux of Griffith’s objection was that
No. 18-1310 5
guideline 2G2.2 is fundamentally flawed and that a below-
guidelines sentence was warranted:
In sum, Mr. Griffith’s objections to the specific
offense characteristics being assessed against him
are that the child pornography guidelines, as ap-
plied to him on the facts of this case, are excessively
harsh and fundamentally incompatible with the
§3553(a) sentencing factors. … Accordingly, Mr.
Griffith asks [for] a substantial downward variance
from the guidelines at the time of sentencing.
R. 18 at 6-7. Griffith’s second major objection was that the court
should not apply enhanced mandatory minimum terms
against him based on his prior criminal sexual abuse convic-
tion under 18 U.S.C. § 2252A(b)(1). The district court agreed
with this position, finding that the enhanced mandatory
minimum terms did not apply to him, and that issue is not a
part of this appeal. Finally, he maintained that Criminal
History Category V over-represented his criminal history.
At the sentencing hearing, after resolving the enhanced
mandatory minimum issue in Griffith’s favor, the district court
noted that the statutory range for Counts I and II was five to
twenty years, and zero to twenty years for Count III. The court
then found that the total offense level was 37, the Criminal
History was Category V, and the guidelines range (which had
been calculated to be 324 to 405 months) would become 240
months because of the statutory cap for each count. The court
asked if the parties concurred “with the Court’s recitation as to
the applicable statutory and guideline provisions,” and both
6 No. 18-1310
parties replied, “Yes.” R. 37, Sent. Tr. at 19. The court then
adopted the revised PSR and its addendum.
After the parties presented argument regarding Griffith’s
objections and the section 3553(a) factors, the government
asked the court to clarify the guidelines range. The government
pointed out that because Griffith pled guilty to three separate
offenses involving discrete materials, his sentences could run
consecutively, meaning there was a sixty-year statutory cap,
not a twenty-year maximum. After asking the probation officer
to check the calculation, the court announced:
Yes. The gist is if I ran it consecutively, I could
impose a guideline range sentence which would be
the 324 to 405 months. In other words, the statutory
cap here would be 60 years—…—if run consecu-
tively. I understand that. … Do you want me to
refine that? I mean, I think it was—I guess all I’ll say
is I think it was an error for me to say earlier that the
guideline range becomes the statutory cap because
they could be run consecutively. … Is that an accu-
rate assessment?
R. 37, Sent. Tr. at 37-38. Defense counsel responded, “Yes.” Id.
After the defendant made a statement, the court addressed
the section 3553(a) factors. In the midst of a thorough discus-
sion of those factors, the court exhaustively addressed Grif-
fith’s arguments regarding “the fairness of these guidelines.”
R. 37, Sent. Tr. at 48. Catering her analysis to the facts of
Griffith’s offenses, the judge found appropriate the two-level
enhancement for material depicting prepubescent children, the
five-level addition for peer-to-peer exchange of material, and
No. 18-1310 7
the four-level bump for the violence of the images. The court
noted that it discounted the two-level enhancement for use of
a computer in nearly all cases because it was part of every
offense and so “not applying the two-level enhancement in
terms of a variance would be appropriate for use of [a] com-
puter.” R. 37, Sent. Tr. at 49. On the number of images, the
court noted that it lacked information regarding the length of
the videos or what was depicted on them, making it difficult to
compute a final number. She declined to use the “boilerplate”
computation of 75 images per video, finding that a four-level
enhancement for the number of images would be more
appropriate than the five levels indicated by the guidelines for
477 photographs and eleven videos:
I think that the—so, the variance, if you want to call
it that, for my recalculated guidelines would be 37.
I think that would be the appropriate reflection of
the seriousness of your conduct here.
R. 37, Sent. Tr. at 50. The court then found that Criminal
History Category V appropriately reflected Griffith’s criminal
conduct over a lengthy span of time. Before announcing the
sentence, the court remarked that Griffith was not the typical
child pornography defendant because most were level 34 with
a Criminal History Category I but Griffith was “squarely” a
Category V. R. 37, Sent. Tr. at 57. After defense counsel
confirmed that the court had addressed all of Griffith’s
arguments in mitigation, the judge sentenced Griffith to 240
months’ imprisonment on each count, to run concurrently, as
well as a term of supervised release. Griffith appeals.
8 No. 18-1310
II.
On appeal, Griffith contends that the district court commit-
ted procedural error when it failed to correctly calculate the
guidelines sentence before imposing the 240-month sentence.
He also argues that the court imposed a substantively unrea-
sonable sentence. We apply the abuse of discretion standard in
reviewing whether sentencing decisions are reasonable. Gall v.
United States, 552 U.S. 38, 46 (2007); United States v. Smith, 860
F.3d 508, 514 (7th Cir. 2017). We first must ensure that the
district court committed no significant procedural error, such
as incorrectly calculating the guidelines range, failing to
consider the section 3553(a) factors, selecting a sentence based
on clearly erroneous facts, or failing to explain adequately the
chosen sentence. Gall, 552 U.S. at 51; Smith, 860 F.3d at 514.
Whether the district court committed procedural error is a
question of law that we review de novo. Smith, 860 F.3d at 514;
United States v. Mendoza, 510 F.3d 749, 754 (7th Cir. 2007).
In raising his procedural challenge, Griffith first asserts that
the court did not correctly calculate the guidelines range when
it initially adopted the PSR addendum’s erroneous guidelines
calculation. He also maintains that the court failed to rule on a
final guidelines range before pronouncing sentence. These
objections do not hold up to a fair reading of the sentencing
transcript.
After adopting the revised PSR and its addendum during
the sentencing hearing, the court became aware that the
document contained an error. The revised PSR calculated the
guidelines range as 324 to 405 months if the enhanced manda-
tory minimum applied, and as 240 months if that statutory
No. 18-1310 9
enhancement did not apply. Prior to the hearing, neither party
noticed that the statutory cap was not limited to 240 months.
Griffith had pled guilty to three counts, each with its own cap
of twenty years (or 240 months), and those terms could be
imposed consecutively for a total of sixty years. As we noted
above, the government alerted the judge to this error after she
rejected the statutory enhancement and otherwise adopted the
PSR. The court agreed with the government’s proposed
correction and then found that the statutory maximum was
sixty years. As the judge clarified at the sentencing hearing,
that meant that the guidelines range was not capped at twenty
years but was in fact 324 to 405 months, which was well within
the sixty-year cap. Both parties expressly agreed that this was
an accurate assessment of the guidelines. In other words, the
court was no longer adopting the PSR in its entirety but was
amending its earlier ruling to account for the corrected
statutory cap of sixty years, making the correct guidelines
range 324 to 405 months. An argument that the court erred in
initially adopting the erroneous PSR is a non-starter. The court
recognized and corrected that error before announcing the
sentence. Any initial misstep was harmless because it did not
affect the court’s choice of sentence. United States v. Morris, 775
F.3d 882, 885 (7th Cir. 2015).
Griffith next claims that the court re-analyzed the five
specific offense characteristics for section 2G2.2 but never
recalculated the guidelines to reflect that new analysis. He is
referring, of course, to the district court’s discussion of a
downward “variance” equivalent to two levels for use of a
computer and one level for the total number of images. In
context, however, it is clear that the court was not re-analyzing
10 No. 18-1310
the specific offense characteristics in order to correct the
guidelines calculation but rather was expressing disagreement
with the properly calculated guidelines sentence.
After United States v. Booker, 543 U.S. 220 (2005), a sentenc-
ing judge has the discretion to disagree with a particular
provision of the guidelines and to impose a non-guidelines
sentence that, in his or her judgment, is more consistent with
the statutory sentencing factors set out in section 3553(a).
Kimbrough v. United States, 552 U.S. 85 (2007); Smith, 860 F.3d at
517; United States v. Rosales, 813 F.3d 634, 637 (7th Cir. 2016). In
the context of addressing the section 3553(a) factors, the court
here explained that it routinely varied downward the equiva-
lent of two levels because child pornography offenses virtually
always involve the use of a computer, making the application
of section 2G2.2(b)(6) inappropriate, in the court’s opinion. The
court similarly disagreed with the “boilerplate” addition of
seventy-five images for each video, allowing for a downward
variance equivalent to one level. The court then stated that “the
variance, if you want to call it that, for my recalculated
guidelines would be 37.” R. 37, Sent. Tr. at 50. That mention of
level 37 was likely a misstatement because it did not take into
account that the court had also adopted the PSR recommenda-
tion to allow a three-level reduction for acceptance of responsi-
bility, and so the variance was analogous to level 34, not level
37. The misstatement had no effect on the sentence, however,
because the court treated the variance as equivalent to a level
34 sentence, not a level 37 sentence.
In expressing its policy disagreement with the application
of certain specific offense characteristics, the court simply
analogized the variance to reductions in particular specific
No. 18-1310 11
offense characteristic levels. The court made this adjustment
under section 3553(a), and had no occasion to recalculate the
final guidelines level. In Criminal History Category V, the
analogous level 34 sentence yields a guidelines range of 235 to
293 months. The final sentence of 240 months is on the low end
of a level 34 sentence and a full 84 months below the bottom of
the properly calculated guidelines range. If, as Griffith argues,
the court had mistakenly failed to account for acceptance of
responsibility when deciding how much to vary, the sentence
would have been significantly higher. We have no doubt that
the court was not correcting the guidelines calculation but was
simply explaining a downward variance under section 3553(a)
from the properly calculated range by way of analogy to the
guidelines.
We emphasize that it was not necessary for the court to
analogize to the guidelines when explaining the downward
variance. United States v. Kuczora, 910 F.3d 904, 908 (7th Cir.
2018) (“the sentencing court need not frame its explanation of
a sentence in terms of a departure from the guidelines range,
but may instead focus on the appropriateness of the sentence
under § 3553.”) (quoting United States v. Courtland, 642 F.3d
545, 550 (7th Cir. 2011)). A court need only explain why a
sentence is appropriate under the statutory criteria. Kuczora,
910 F.3d at 908. So long as a court uses the properly calculated
guidelines range as a starting point, it may explain a decision
to vary from the range with reference to the section 3553(a)
factors alone. Kuczora, 910 F.3d at 908.
We also note that the court had not found any error in the
PSR’s calculation of the guidelines (other than the statutory cap
issue we noted earlier) and had no reason to recalculate the
12 No. 18-1310
guidelines. The court’s Statement of Reasons explaining the
sentence makes clear that the court intended for the three-level
reduction to be a variance because of a policy disagreement
with the properly calculated guidelines, not a change to the
guidelines calculation. R. 27, at 3, ¶ VI.D. And Griffith points
to no error in the district court’s guidelines calculation here.
Indeed, Griffith did not challenge the factual basis of the
guidelines calculation or the final offense level in the district
court. He argued instead that the resulting offense level was
inconsistent with the purposes of sentencing expressed in
section 3553(a). He did not deny, for example, that some of the
photographs depicted prepubescent minors, or that certain
images portrayed violence towards and sexual abuse of
toddlers. He conceded that he offered access to his Twitter
accounts in exchange for additional child pornography, that he
used a computer and that his offenses involved more than 600
images when calculated under guidelines standards. But in
conceding the basic facts underlying the calculation and the
result of the "rote application" of the guidelines provisions, he
objected only that the result produced a draconian and
unjustified sentence. In light of all of the circumstances, the
only reasonable reading of the sentencing transcript is that the
court understood and announced a correct calculation of the
guidelines and then varied downward by analogy to certain
guidelines factors during the discussion of the statutory
factors.
Finally, we can quickly dispense with any claim that the
final sentence was substantively unreasonable. When assessing
the substantive reasonableness of a sentence under the abuse
of discretion standard, we presume that a within-guidelines
No. 18-1310 13
sentence is reasonable. Rita v. United States, 551 U.S. 338,
347–56 (2007); United States v. Moore, 851 F.3d 666, 674 (7th Cir.
2017). That same presumption obviously applies to a below-
guidelines sentence, such as the one imposed here. Moore, 851
F.3d at 674. Griffith bears the burden of rebutting that pre-
sumption by demonstrating that the sentence is unreasonably
high in light of the section 3553(a) factors. United States v.
Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).
Griffith attempts to surmount that challenge by arguing
that his collection of child pornography was relatively small;
that his crimes involved no contact offenses; that a twenty-year
term was a de facto life sentence for a man of his age and health;
that the sentence was unnecessary to deter recidivism because
of his age and the lengthy term of supervised release; and that
section 2G2.2 encourages unreasonably harsh sentences. The
district court carefully considered and addressed each of these
arguments, and Griffith’s claim on appeal amounts to a request
that we substitute our judgment for that of the district court. In
the usual course, it would be the government, not the defen-
dant, arguing that the court abused its discretion by granting
a significantly below-guidelines sentence. In any case, the
district court did not abuse its discretion in granting Griffith an
eighty-four month break from the bottom of the properly-
calculated guidelines sentencing range, and the sentence was
substantively reasonable.
AFFIRMED.