Appeal from the United States District Court for the Southern District of Iowa.
Before GRUENDER, BALDOCK,*fn1 and BENTON, Circuit Judges.
Donald W. Bain, Jr., pled guilty to one count of receiving and distributing child pornography (Count 1), and one count of possession of child pornography (Count 2), 18 U.S.C. §§ 2252(a)(2), 2256. The district court*fn2 sentenced him to 210 months imprisonment on Count 1, and 120 months on Count 2, to be served concurrently.
Bain appeals the sentence. Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(b)(1), this court affirms.
On February 9, 2005, the FBI, acting on a tip from the Norwegian government, executed a search warrant at Bain's house. Agents seized three computers and numerous floppy disks containing 496 images and digital movies depicting minors engaged in sexual acts. Bain admitted to the FBI that he traded child pornography files from his home, using the file sharing program "Kazaa."
After being indicted, Bain was placed on pre-trial release, with supervision and an unsecured appearance bond. He was allowed to travel outside the country several times, with permission of the court. He underwent two psychological examinations, each concluding that he did not meet the criteria for a diagnosis of pedophilia, and that he presented low risk of re-offense.
The PSR determined the base offense level as 22. This was increased two levels because some material involved minors under age 12, U.S.S.G. § 2G2.2(b)(2); five levels because he traded the material for more child pornography, U.S.S.G. § 2G2.2(b)(3)(B); four levels because some material portrayed sadism, masochism, or other depictions of violence, U.S.S.G. § 2G2.2(b)(4); two levels because he used a computer to receive and distribute material, U.S.S.G. § 2G2.2(b)(6); and five levels because the offense involved more than 600 images,*fn3 U.S.S.G. § 2G2.2(b)(7)(D). After a three-level decrease for acceptance of responsibility, Bain's total offense level was 37. With a criminal history category I, this translates to a guidelines range of 210 to 262 months.
At sentencing, Bain requested the statutory minimum sentence of 60 months, arguing the § 3553(a) factors. The district court responded:
I can't do that. Hang on. In order to go below the Guidelines pursuant to 3553 which are viewed in the Eighth Circuit now as affirmed by the United States Supreme Court as presumptively reasonable, there's got to be a ground for a variance. I mean, what are the grounds for a variance of as much as two-thirds to three-fourths of the sentence under the Guidelines? People who cooperate and put their life at risk, if the Court gives them more than 45 or 50 percent off for putting their life at risk, the Court of Appeals reverses that as an unreasonable sentence. Here what would the grounds be for a variance of the magnitude you are talking about?
Bain told the court that "a grounds for variance that make it acceptable in the Guidelines does not exist." He went on to explain that his character, history, and the fact that he would not re-offend are reasons "that a long sentence is not necessary." The court did not respond.
After the government asked for the low end of the guidelines range, the court stated:
You knew when you were doing it that it was wrong, you just didn't know how serious the punishment is for this offense and so you are right, you have -- you're going to pay dearly, your wife is going to pay dearly, everybody associated with you is going to pay dearly and it is painful because you were by all accounts very successful, a contributing member to your community, certainly to your workplace, it is harsh.
The court then considered the § 3553 factors, concluding that "a sentence at the bottom of the range is sufficient to address the essential sentencing considerations."
Reviewing a sentence, this court must "first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence -- including an explanation for any deviation from the Guidelines range." Gall v. United States, 552 U.S. 38, 51 (2007). "If the decision was 'procedurally sound,' we then review the 'substantive reasonableness of the sentence' under the abuse-of-discretion standard considering the totality of the circumstances." United States v. Alvizo-Trujillo, 521 F.3d 1015, 1017 (8th Cir. 2008), citing Gall, 552 U.S. at 51.
Bain argues that the district court procedurally erred by applying a presumption of reasonableness to the guidelines range in violation of Rita v. United States, 551 U.S. 338 (2007), and by requiring extraordinary circumstances to justify a non-guidelines sentence in violation of Gall, 552 U.S. 38.
The district court twice referenced a presumption of reasonableness. First, after Bain asked for the statutory minimum sentence the court replied, "In order to go below the Guidelines pursuant to 3553 which are viewed in the Eighth Circuit now as affirmed by the United States Supreme Court as presumptively reasonable, there's got to be a ground for a variance." (emphasis added). Second, when announcing the sentence the court stated:
The Sentencing Guidelines are presumed reasonable here in the Eighth Circuit Court of Appeals. They are not mandatory, but they are based on extensive study and refinement. They exhibit the will of Congress and they promote consistency in sentencings. Accordingly the court looks to those ...