NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0693n.06
No. 09-4219
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. DAL E P. DATTI L I O, Def endant- Appellant.

______________________________ ) ) ) ) ) ) ) ) ) ) O N A P P E A L F R O M T H E UNI TED STATES DI STRI CT COURT FOR THE NORTHERN DI STRI CT OF OH I O
O P I N I O N

Be fore : GRI FF I

N and WHI TE, Circuit J udg es; WATSON, District J udg e. *
HELE NE N. WHITE , Circuit Judge. After pleading g uilty to t h re e co u n ts char g ing violations of fede ral child-pornography laws, Dale Phill ip Dattil i o wa s sentenc ed to serve 360 months for the first two counts and 20 y ear s for the third. He appea ls the district court’s ruling that his prior state conviction of g ross sexual imposit ion trig g ere d enhanc ed penalties under fede ral law; he also c halleng es his sentenc e as g reater than ne cessa ry . We AF F IRM

. BACK GR OUND The underlying fac ts a

re undisputed. Be tween Aug ust 1, 2004, and J uly 12, 2005, Dattilio

connec ted to t h e i n t er n et from his home computer and, using peer -to-pee r file-sha ring softwar e,

The Honor able Micha el H. Watson, United States District Judge for the Souther n District * of Ohio, sitting by

desig nation.downloaded and exchang ed child pornog raphy with other online users. On J uly 12, 2005, Dattilio 1 possessed 199 compac t discs containing numerous imag e and video files depict i n g rea l minors
eng ag ed in sexually expli cit conduct and other child pornog raphy

. Among these files wer e imag es and videos of prepube scent minors eng ag ed in sexua l l y expli cit conduct and being subjected to sadistic conduct. Dattilio was arr ested and char g ed with: (Count I ) rec eiving and distributing visual depictions of m inors eng ag ed in sexually expli cit conduct, in violation of 18 U.S.C. § 2252(a) (2); (Count I I ) rec eiving and distributing child pornog raphy , in violation of 18 U.S.C. § 2252A(a )(2) (A); and (Count I I I ) possessing child p o rn o gra p h y , in violation of 18 U.S.C. § 2252A(a )(5) (B ). The minimum sentenc e for a defe ndant convicted under § 2252(a) (2) or § 2252A(a )(2) is five y ear s, with

a maxi mum of 20 y ear s. §§ 2252(b)( 1), 2252A(b)( 1). Howeve r, if the defe ndant has cer tain prior

co n v i ct i o n s , t he minimum incre ases to 15 y ear s and the maxi mum to 40. Id. The maxi mum
sentenc e for violating § 2252A(a )(5) is 10 y ear s, unless the defe ndant has cer tain prior convictions, in which case 10 y ear s is the m inimum sentenc e and 20 y ear s the m axim um. § 225 2 A( b)(2)

. On Ap ri l 21, 2009, pursuant to a written Plea Ag ree ment, Dattilio pleade d g uilty to all coun t s an d stipulated that in 1987 he was convicted of g ross sexual imposition on a child under the ag e of 13 under O hio law. Dattilio ’s Presentenc e I nvestig ation Report (“PSR”) deter mined pursuant to the U.S. Sentencing Commi ssion Guidelines (“the Guidelines”) that his base offe nse level was 22. See U.S. Sentencing Guidelines Manual (“U .S.S.G.”) § 2G2.2(a )(2) (2008). I n addition, the PSR

Peer- to-pee r file-sha

ring prog rams allow computer u s e r s to v ie w , d o w n lo a d a n d s h a re digital 1 files stored on any other user’ s computer without spe cial permission. See generally MGM Studios Inc. v . Grokster, Ltd. , 545 U.S. 913, 918-23 (2005). 2rec ommended that the district court apply the following six enhanc ements b as ed on the specific

char acte ristics of Dattilio’s offe nse: 1. Two l ev els beca

use the files seized involved a prepube scent minor or a minor under the ag e of 12, see § 2G2.2(b)( 2); 2. Five levels beca

use Dattilio distrib u t ed fi l es in exchang e for “the rec eipt, or expectation of rec eipt, of a thi n g of value [ i.e. , other files depicting child pornog raphy ], but not f

or pecunia

ry g ain,” as shown by his use of peer -to-pee r filesharing softwar e, § 2G2.2( b)(3) (B ); 3. Four levels beca

use the mate rials portra

y ed sadistic conduc t, see§ 2G2.2(b)( 4); 4. Five levels beca

use Dattilio “eng ag ed in a pattern of activity involving the sexual abuse or exploi tation of a minor,” § 2G2.2(b)( 5), as shown by his 1987 conviction; 5. Two levels beca

use the offe nses involved the use of a computer, see § 2G2.2(b)( 6); and 6. Five levels b ec au s e the discs seized contained more than 600 imag es, see § 2G2.2(b)( 7)(D)

. The PSR found that afte r deducting three levels for acc eptanc e of responsibility , Dattilio had a total offe nse level of 42, which, combined with a criminal-history cate g ory of I , resulted in a sentenc ing
rang e of 360 months to life on all counts. The PSR also conclude d that Dattilio’s 1987 conviction of g ross sexual imposit ion was a prior convic t i o n fo r purposes of 18 U.S.C. §§ 2252(b)( 1), 2252A(b)( 1) and 2252A(b)( 2), such that he fac ed a maxi mum of 40 y ear s on Counts I and I I , and 20
y ear s on Count I I I

. Dattilio did not file objections t o t h e PSR

. Howeve r, prior to sentenc ing, he submitt ed a

m em orandum challeng ing whether his 1987 conviction should be considere d a prior convictio n under §§ 2252(b)( 1) and 2252A(b)( 1) & (2 ). Dattilio also arg ued that, much l ike t he well-known disparity in the Guidelines’ treatment of cra ck- and powder -coc aine offe nses, the child-pornog raphy Guidelines – § 2G2.2 in particula r

– consistently y ield excessive sentenc ing rang es that do not further the purposes of

sentenc ing de fined by

18 U.S.C. § 3553(a)(2)

.

3The district court held that Dattilio’s 1987 conviction of g ross sexual imposit ion was a prior

o ff en s e contemplated by 18 U.S.C. §§ 2252(b) and 2252A(b). The court revie wed the PSR and
ag ree d that all six offe nse-leve l enhanc ements wer e applicable

. The court sentenc ed Dattilio to 360 months o n C o u n t s I and I I , the bottom of the Guidelines rang e, and 240 months on Count I I I , the statutory maxi mum, to be served c oncurr ently . Dattilio tim ely appea led.
DISCUSSIO N
A. Dattilio’s Conviction of Gr oss Sexual Im position was a P rior Conviction for P urposes of 18 U.S .C. §§ 2252(b) and 2252A(b) “We re v i ew d e n o vo the district court’s leg al conclusion that a prior conviction is a qualifying offe nse.” United States v. McG ratt an , 504 F.3d 608, 610 (6th Cir. 2007) (citation omitted). When deciding whether a prior state-law conviction trig g ers an enhanc ed sentenc e under §§ 2252(b) or

2252A(b), w e look first to the “f act of conviction and the statutory definition of t he prior offe nse.” Taylor v. United States , 495 U.S. 575, 602 (1990); McG rattan , 504 F.3d at 611. I f

nece ssary , we may also consider “the terms of the char g ing document, the terms of a plea ag ree ment

or transcr ipt of col l o q u y b et we en judge and defe ndant in which the fac tual basis for the plea was confirme d by the defendant, or to some compar able judicial recor d of this information.” Shepard v. United States , 544 U.S. 13, 26 (2005); McG rattan , 504 F.3d at 611.
A defe ndant convicted of violating 18 U.S.C. §§ 2252(a) (2) or 2252A(a )(2) is subject to at least 5 y ear s and not more than 20 y ear s imprisonment, but, if such person has a p rior conviction under

. . . the laws of any State relating to ag g ravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or war d,

. . . such person shall be

. . . imprisoned for not less than 15 y ear s nor more than 40 y ear s.

4§§ 2252(b)( 1), 2252A(b)( 1). The same rule applies t o defe ndants convicted of violating §

2252A(a )(5) , with d i ff

er ence s in the minimum and maxi mum sentenc es. See § 2252A(b)( 2). 2 Chapter 110 of Title 18, U.S. Code, which contains §§ 2252 and 2252A, does not define the offe nses of ag g ravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor.
I n 1987, Dattilio plea ded g uilty of g ross sexual imposition on a child under the ag e of 13. 3 During the re levant per iod, Ohio’s g ross-sexual-impositi on statute provided:
No person shall have sexual contac t wi t h an o ther, not the spouse of the offe nder; cause anot h er , n o t the spouse of the offe nder, to have sexual contac t with the offe nder . . . w hen any

of the following

apply :

. . . (3) The other pe rson . . . is less than thirteen y ear s of ag e . . . . Ohio Rev. Code (“ O.R.C.”) § 2907.05(A) (1987) ( quoted in State v. Astley , 36 Ohio App. 3d 247,
523 N.E.2d 322, 324 n.2 (1987))

. At the time, Ohio law define d “sexual contac t” as “any touching of an erog enous zone of another , includi n g wi t h out limit ation the thigh, g enitals, buttock, pubic
reg ion, or, if the person is a fema le, a brea st, for the purpose of sexually arousing or g ratify ing either person.” O.R.C. § 2907.01(B )(1987) ( quoted in State v. W ilson , No. 52031, 1987 WL 10042, 1987 Ohio App. L EXI S 6933, at *12-13 (Ohio Ct. App. Apr. 23, 1987) ).
I n his me morandum and at sentenc ing, Dattilio arg ued that his 1987 conviction did not fall withi n 1 8 U .S.C. §§ 2252(b)( 1), 2252A(b)( 1) or § 2252A(a )(5) beca use fede ral law did not rec og nize the crime of g ros s s ex u al i m position. Since Chapter 110 of Title 18 does not define ag g ravated

Be cause the rele vant portions of 18 U.S.C. §§ 2252(b) and 2252A(b) are worde d identically , 2 we treat them as one. See McG rattan , 504 F.3d at 611 (noting that §§ 2252A(b)( 1) and 2252(b)( 2) are “mater ially

indisti ng uishable” f

rom one a nother). The indi ctment i n that case alleg ed that Dattili o had sexual contac t with his stepdaug hter, 3 beg inning when she was six or seven y ear s old. Dattilio denied having intercour se with the victim and stated that his conduct consisted only of “touc hing.” 5sexual abuse, sexual abuse, or abus i v e s exual conduct involving a minor, Dattilio argued that the

district court should construe these offenses ac co rd i n g to their definitions in Chapter 109A of t he same ti tle, specific ally : 18 U.S.C. § 2241(c) (ag g ravated s exual abuse of a child), § 2 2 4 2 (sexual abuse) and § 2244(c) (abusive sexual contac t involving a child under 12). The Gover nment observe d that circuits are split over whether the undefine d offe nses of 18 U.S.C. §§ 2252 and 2252A are to be construed acc ording to 18 U.S.C. §§ 2241(c) , 2242 and 2244(c) , but stated that the conflict was 4
immaterial in this case beca use Ohio’s g ross-sexual-impositi on offe nse fell within the definition of abusive sexual contac t involving a child under fede ral law. After compar ing the rele vant statutory provisions, the di strict court a g ree d with the Gover nment and held that Dattilio’s prior conviction fell within §§ 2252(b) a

nd 2252A(b).
On appea l, Dattilio maintains his position that there is no fede ral equivalent to his prior state conviction and that none of the offe nses mentioned in 18 U.S.C. § § 2 2 52(b) or 2252A(b) – ag g rava ted sexual abuse, sexual abuse, or abusive sexual conduct involving a minor – is equivalent
t o gro s s sexual imposit ion under Ohio law. We disag ree . The definition of “sexual conta ct ” i s

n early identical under fede ral and Ohio law. Compare 18 U.S.C. § 2246(3) (“[T]he term ‘s ex u al
contac t’ means the intentional touching , either direc tly or throug h the clothing, of the g enitalia, anus,
g roin, brea st, inner thigh, o r b u t tocks of any person with an intent to abuse, humiliate, hara ss,

Compare United States v. Gilbert , No. 10-4039, 2011 WL 1595055, 2011 U.S. App. L EXI S 4 8815, at *9-11 (4th Cir. Apr. 28, 2011) (re fusing to import the definitions of Chap t er 1 0 9A into Chapter 110), United States v. Sonnenberg , 556 F.3d 667, 671 (8th Cir. 2009) (same) , United States v. Sinerius , 504 F.3d 737, 743 (9th Cir. 2007) (same) , United States v. Hubbard , 480 F.3d 341, 348- 49 (5th Cir. 2007) (same) , and United States v. Harding , 172 F. App’x 910, 913-14 (11th Cir. 2006) (same) , with United States v. Osborne , 551 F. 3 d 7 1 8 , 720-21 (7th Cir. 2009) (looking to Chapter 109A to construe undefine d terms in Chapter 110). This Circuit has y et to addre ss this question, but we ne ed not re solve it here. 6deg rade , or arouse or gra t i fy the s exual desire of any person” ), with O.R.C. § 2907.01(B ), supra .

Ba sed on these definitions, there is no doubt that Dattilio’s 1987 offe nse, which consisted of having
y ear s of sexual contac t with a g irl betwee n the ag es of 7 and 13, constitutes a busive sexual contac t involving a c hild under 12. Ther efor e, Dattili o’s ar g ument fails.
B. The District Court Consid ere d Dattilio’s Charact er and Background When Im posin g Sentence Dattilio asser

ts that the district court faile d to consider his char acte r and backg round in devising his sentenc e. Altho u gh Dattilio does not specify the nature of his challeng e, it is to the
proce dural re asonable ness of his sentenc e. A se ntence is procedur ally unrea sonable if – the district court commit[ s a] signific ant proce dural err or, such as failing to calc ulate (or improperly calc ulating) the Guidelines rang e, trea ting the Guidelines as mandatory , failing to consider the [18 U.S.C.] § 3553(a) fac tors, selec ting a sentenc e based on clea

rly err oneous fac ts, or failing to adequa tely explain the chosen sentenc e – including a

n explanation for any

deviation from the G uidelines rang e. Gall v. United States , 552 U.S. 38, 51 (2007); United States v. Vonner , 516 F.3d 382, 385 (6th Cir. 2008) (e n banc)

. Dattilio did not ra ise this issue at sentenc ing; there fore , our revie w is for plain err or. See United States v. Penson , 526 F.3d 331, 337 (6th Cir. 2008) (“[P] lain-er ror revie w applies on appea l
to those arguments not prese rved in the district court.” (citation omitted)). Plain err or occur s when: (1) there is an err or, which is (2) clea r or obvious, (3) aff

ects the defe ndant’s substantial rig hts, and (4) seriously aff

ects the fairne ss, integ rity or public reputation of judicial proce eding s. United States

v. Marcus , ___ U.S. ___, 130 S. Ct. 2159, 2164 (2010); United States v. W allace , 597 F.3d 794, 802 (6th Cir. 2010).

7A sente n c in g e xp la n a ti o n is p r o c e d

u r a ll y r e a s onable if the sentenc ing judge provides “enoug h [reasons] to satisfy the appellate court that he has considere d the parties’ arguments and h as a

rea soned basis for exercising his own l eg al decisionmaking authority .” Rita v. United States , 551
U.S. 338, 356 (2007); United States v. Brooks , 628 F. 3 d 791, 796 (6th Cir. 2011). To satisfy
proce dural rea sonablene ss, “whe n a defe ndant raises a particula r, nonfrivolous arg

ument in seeking

a lower sentenc e, the rec ord must ref lect both that t h e district judge considere d the defe ndant’s
argument and that the judge explained the basis for reje cting it.” United States v. Johnson , 640 F.3d
195 (6th Cir.2011) (quoting United States v. Gapinski , 561 F.3d 467, 474 (6th Cir. 2009)). The key question is alwa y s “whether ‘[t] he rec ord makes clea r that the sentenc ing judge listened to eac h
argument,’ ‘consider ed the supporting evidenc e,’ was ‘ f u lly awa re’ of the defe ndant’s circ umstances and took ‘them into acc ount’ in sentenc ing him.” Vonner , 516 F.3d at 387 (quoting Rita , 551 U.S. at 358). Datti lio argues that the district court failed to take into considera tion the fac t th at h e wa s abused as a child, that he has a close relationship with his son and that he was diag nosed as HIV positive in 2006. The rec ord flatly belies t h i s . The district court went over Dattilio’s persona l char acte ristics at leng th, discussing his familial re lationships, phy sical health, education a nd work history , and his willingness to seek counseling to deal with mental and emotional issues. The court also hear d Dattilio explain how he beg an consuming pornog raphy afte r enduring sexual abuse at the
ag e of nine. By itself, the fac t that the district court did not mention Dattilio’s history of abuse when imposing sentenc e does not conclusively establish that the court ignor ed this argument. To the contrary , viewed in its totality , the t ransc ript of Dattil io’s sentenc ing hear ing shows that the co u rt thoughtf ully considere d all of the 18 U.S.C. § 3553(a) fac tors and listened attentively to D attilio’s

8and his lawy er’ s stat em en t s . Dattilio’s arguments wer e “conc eptually straig htforwa rd,” and “[n] othing in the rec ord, or the context of th e h ea ri ng , sug g ests that the court did not listen to, consider and understand ever y argument” that he made. Vonner , 516 F.3d at 388 (citing Rita , 551 U.S. at 358) (inter

nal quotation marks and br acke ts omit ted). Thus, the district c ourt did not err.
C. Dattilio’s P uni shme nt was not G r e a t e r than Nec essary to Achieve the Sentencing Goals of 18 U.S .C. § 3553(a)
I n sentenc ing Dattilio, the district court applied sever al sentenc ing enhanc ements mandated by U.S.S.G. § 2G2.2. Dattilio does not claim that these enhance ments wer e im proper ly applied. 5
I nstead, he argues that thei r co m b i n ed ef fec t is to produce a Guideline rang e that is g reater than

nece ssary to satisfy the objectives of

sentenc ing de fined by

18 U.S.C. § 3553(a). This Cour t re v i ew s whether a sentenc e is substantively rea sonable under an abuse- ofdiscretion standard. Gall , 552 U.S. at 51; see also United States v. Herrera- Zuniga , 571 F.3d 568,
578 (6th Cir. 2009) (“A defe ndant

. . . is not require d to object to the substantive rea sonablene ss of his sentenc e to prese rve that issue for appea l.”). “The essenc e of a substantive-re asonable ness claim is whether the leng th of the sentenc e is ‘ g reater than nece ssary ’ to a chieve the sentenc ing g oals set forth in 18 U.S.C. § 3553(a) .” United St ates v. T ristan-Madr i

g a l , 601 F.3d 629, 632-33 (6th Cir.

Dattilio’s 1987 conviction of g ross sexual imposit ion resulted in a five-point enhanc ement 5 pursuant to U.S.S.G. § 2G2.2(b)( 5), which applies when a defe ndant “eng ag ed in a pattern of activity involving the sexual abuse or exploi tation of a minor.” Dattilio’s brief does not make clea r whether he objects to the use of that conviction as the basis for the enhanc ement or only to its being treated as a prior offe nse under §§ 2252(b) and 2252A(b). Howeve r, at sentenc ing, Dattil i o ’s at t orney specific ally stated that he did not contest the enhanc ement, but only whether the conviction trig g ere d the highe r penalties of §§ 2252(b) and 2252A(b). Since Dattilio expr es s l y wa ived this argument below, the Panel cannot revie w it unless “the interests of justice demand otherwise.” United States v. Aparco-Cente no , 280 F.3d 1084, 1088 (6th Cir. 2002) (quotation marks and citation omitted); see also United States v. Olano , 507 U.S. 725, 733 (1993) (“[W] aiver is the intentional relinquishment or abandonme nt of a known rig ht.” (citation omitted)). Dattilio does not argue that the interests-of

justice exception applies her e. 92010). “A sentenc e may be considere d substantively unrea sonable when the district court selec ts a

sentenc e arbitra

rily , bases the sentenc e on impermissible fac tors, fails to c o n s id e r r e le v a n t s e n te n cing fac tors, or g ives an unrea sonable amount of weig ht to any pertinent fac tor. ” Un i t ed S tates v. McCarty , 628 F.3d 284, 289 (6t h C i r. 2 0 1 0 ) (interna l quotation marks and citation omitted). A
sentenc e is revie wed in light o f “the totality of the circ umstances, including the extent of any varia nce from the Guidelines rang e.” Gall , 552 U.S. at 51; United States v. Lanning , 633 F.3d 469,
474 (6th Cir. 2011)

. Sentence s within the rang es rec ommended by the Guidelines are entitled to a rebuttable presumption of rea sonablene ss, but s e n te n c e s o uts id e th e G u id e li n e s a

r e n o t p r e s u

mp tively

unrea sonable. Gall , 552 U.S. at 51; United States v. Bolds , 511 F.3d 568, 581 ( 6th Cir. 2007) . Dattilio argues that U.S.S.G. § 2G2.2' s numerous offe nse-l ev el enhanc ements almost inevitably produce sentenc ing rang es near or above the statutory maxi mum, even for run-of -the-mill offe nders, and that the result i n g s entenc es are “gr eate r t han necessar y ” to achie ve the purposes of
sentenc ing. There fore , Datt i l i o ar gu es, the district court should have reje cted the flawe d policies b eh i n d U.S .S.G. § 2G2.2 and depar ted from the Guideline. I n support, he cites a commen t b y Assistant Fede ral De fende r Troy Stabenow, Dec onstructing the Myth of Careful Study: A Primer

on the Flawed Progression of the Child Pornography Guidelines (2009), available at http:// www.f

d.org /pdf_lib/child%20porn%20july %20re v i s ion.pdf (last visited Aug ust 3, 2011). 6

Stabenow’s thesis is that the Sentencin g C o m mission, whose “princ ipal purpose is to 6 establish sentenc ing policies and prac tices for the fede ral criminal justic e s y s te m, ” U.S.S.G. § 1A1.1, has been sidelined with reg ard to child-pornog raphy Guidelines by Congr ess, which has repe atedly direc ted the Commi ssion to incre ase sentenc ing ran ges for offe nders and even made direc t amendments to § 2G2.2. See Stabenow, supra , at 3-26. These chang es wer e often decide d without the Commi ssion’s input and, i n some case s, over its objections. See id. The result, acc ording to Stabenow, is that the aver ag e sentenc e for child-pornography offe nders has risen from 20.59 months in 1997 to 91.3 months in 2007, a 443% incre ase in just over ten y ear s. Id. at 2. As summarized by the Seventh Circuit, 10“Stabenow’ s article has been g aining trac tion in the district courts and has been cited numerous times

for the proposition that a judge who disag ree s g ener ally with the harshne ss of the child-pornog raphy
g uidelines may impose a sentence well b el o w t he guidelines rang e for that rea son alone.” United States v. Huffstatler , 571 F.3d 620, 622 ( 7th Cir. 2009) (per curiam). Thi s C o u rt has alre ady noted that § 2G2.2 is “funda mentally differ ent” from most other Guidelines beca

use, wher eas “Sentenc ing Guidelines are ty pically develope d by the S en t encing Commi ssion using an empirica l approa ch based on data ab o u t p ast sentenc ing policies

. . . , the Commi ssion did not use this empirica l approa ch in formulating the Guidelines for child
pornog raphy .’” United States v. McNerne y , 636 F.3d 772, 775-76 (6th Cir. 2011) (quoting United
States v. Dorvee , 6 0 4 F. 3 d 84, 95 (2d Cir. 2010)). Neve rtheless, the Court observe d, “it is unquestionably Congr ess’ constitutional prer og ative to issue sentenc ing direc tives” like the various offe nse-leve l enhanc ements in child-pornog raphy case s. Id. at 778.
We have rec og nized that a district court disag ree ing with the child-pornog raphy Guidelines for policy rea sons may reje ct those Guidelines based on that disag ree ment. Brooks , 628 F.3d at 799- 800; United States v. Janosko , 355 F. App’x 892, 895 (6th Cir. 2009). We have also rec og nized that

a district c ourt is not require d to so depar t. Janosko , 355 F. App’x at 895. The rec ord is c lear that

Stabenow prese nts the following sy llogism: Kimbrough v

. United States , 552 U.S. 8 5 , 1 2 8 S. Ct. 558, 169 L

. Ed. 2d 481 (2007), allows district courts to disa gre e o n p o l i cy g rounds with sentenc ing g uidelines that exhibi t methodologic al flaws; the same methodologic al flaws that char acte rize the cra ck g uidelines – lack of empirica l support – also undermine the child-pornog raphy g uidelines; there fore , district courts may sentenc e child-pornog raphy offe nders bel o w t h e g uidelines rang e based on disag ree ment with the policy embodied in the g uidelines. United States v. Huffstatl er , 571 F.3d 620, 623 (7th Cir. 2009) (per curiam) (citing Stabenow, supra , at 27-32). 11the dist ri ct co u rt d id not arbitra rily selec t a sentenc e or rely on impermissible fac tors to devise Dattilio’s penalty

. Nor did the court elevate one fac tor over the other, or fail to consider any rele vant f a c to r . The court corr ectly calc ulated the applicable sentenc ing rang e and, afte r hear ing the defe nse’ s
arguments and re viewing the re levant § 3553(a ) fa ctors, sentenc ed Dattilio to the lower end of the

rec ommended rang e on Counts I and I I and imposed the statutory maxi mum on Count I I I , concluding that, under the circ umstances prese nted, a Guidelines sentenc e satisfied the objec ti v e s o f s e n te n c in g . There was no a

buse of discr etion under the circ umstances. The judg ment of the district cour t is AF F IRMED

.

12