PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4412

UNITED STATES OF AMERICA,

Plaintiff − Appellee,

v.

STEVEN RUSSELL HELTON,

Defendant − Appellant.

Appeal from the United States District Court for the Southern

District of West Virginia, at Beckley. Irene C. Berger,

District Judge. (5:12-cr-00134-1)

Argued: December 11, 2014 Decided: April 2, 2015

Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges. 

Affirmed by published opinion. Judge Wilkinson wrote the 

opinion, in which Judge Gregory and Judge Duncan joined. Judge 

Gregory wrote a separate concurring opinion.

ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Charleston, West Virginia, for Appellant. Lisa Grimes 

Johnston, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West 

Virginia, for Appellee. ON BRIEF: Mary Lou Newberger, Federal 

Public Defender, David R. Bungard, Assistant Federal Public 

Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, 

West Virginia, for Appellant. R. Booth Goodwin II, United States 

Attorney, William B. King, II, Assistant United States Attorney, 

OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, 

for Appellee.
2

WILKINSON, Circuit Judge:

Appellant Steven Helton pled guilty to one count of knowing 

possession of child pornography in violation of 18 U.S.C. 

§§ 2252A(a)(5)(B) and 2252A(b)(2). He was sentenced to 60 months 

in prison followed by a lifetime term of supervised release. 

Helton now appeals. The question presented to this court is 

whether, given the facts of this case, a lifetime term of 

supervised release is procedurally and substantively reasonable. 

For the following reasons, we think it is and now affirm.

I.

In October 2010, Sergeant D.C. Eldridge, a member of the 

West Virginia Internet Crimes Against Children Task Force, 

determined that a computer near Beckley, West Virginia, 

contained several child pornography videos accessed through 

peer-to-peer software that the Task Force was monitoring. 

Sergeant Eldridge, with assistance from the FBI, identified the 

subscriber to the IP address associated with the computer as 

Barbie Helton of Beaver, West Virginia. On December 29, 2010, 

investigators executed a search warrant on the Helton residence 

where Ms. Helton lived with her son, Steven. As part of this 

initial search, Sergeant Eldridge discovered several files 

containing child pornography on Steven Helton’s computer. 

Defendant, after being advised of his constitutional 

rights, gave a recorded statement to law enforcement, explaining 
3

that he regularly viewed adult and child pornography and would 

download, view, and then delete images, and then return to 

download more images. Forensic investigators found a total of 

961 individual images of child pornography on the hard drive of 

the computer, although only 42 were actively accessible for 

viewing at the time of the search. In the course of his 

interview, Helton admitted to downloading some of the images 

onto his iPod for personal use, but denied trading or sharing 

child pornography with any other users. 

Many of the images found by investigators were of 

prepubescent minors engaged in sexual acts, exhibition of 

genitals, or bondage, and at least one depicted a child engaged 

in sadistic or masochistic acts. Helton explained that he had 

been sexually abused by his stepfather when he was a child, and 

that he had sought treatment in the past but had been unable to 

stop viewing child pornography. He also admitted that he had 

been caught viewing child pornography while he was a juvenile in 

foster care and that he had been removed from a foster family 

for sexually abusing a three-year old when he was thirteen years 

old. 

On June 12, 2012, a federal grand jury in the Southern 

District of West Virginia issued a two-count indictment against 

Helton for knowing receipt and knowing possession of child 

pornography in violation of 18 U.S.C. §§ 2252A(a)(2), (a)(5)(B), 
4

and 2252A(b)(1)-(2). Helton pled guilty to one count of knowing 

possession of child pornography in violation of 18 U.S.C. 

§§ 2252A(a)(5)(B) and 2252A(b)(2). The maximum term of 

imprisonment under the statute is ten years. See 18 U.S.C. 

§§ 2252A(a)(5)(B), 2252A(b)(2). Under 18 U.S.C. § 3583(k), the 

court must impose a term of supervised release of at least five 

years and up to life for crimes under § 2252A. 

The presentence investigation report, prepared by the 

probation office, recommended a Guidelines range of 78 to 97 

months of imprisonment based on a total offense level of 28 and 

a criminal history category of I. The district court adopted the 

presentence investigation report, after thoroughly reviewing it 

at the sentencing hearing. See J.A. 168-72. It noted the 

statutory maximum and walked the defendant through the 

Guidelines calculations. As the trial judge explained, a 

violation of § 2252A(a)(5)(B) has a Base Offense Level of 18. 

See id. at 170; see also U.S.S.G. § 2G2.2(a)(1). A two-level 

enhancement was added for using a computer to search for and 

access child pornography. In addition, two levels were added for 

material that depicts a prepubescent minor under the age of 12 

and an additional four levels for material portraying sadistic 

or masochistic conduct. Lastly, a five-level enhancement was 

added because the offense involved 600 or more images. Helton 

received a three-level reduction for acceptance of 
5

responsibility, bringing his total offense level to 28. Because 

this was his first conviction, his criminal history category, as 

noted, was I.

At the sentencing hearing, neither party objected to the 

Guidelines calculation included in the presentence report, 

although the defendant provided a comment by way of additional 

explanation that the majority of images were not sadistic or 

masochistic in nature. See J.A. 158-59. The sentencing judge 

noted objections from the defense regarding several of the more 

onerous conditions of supervised release and agreed to remove 

some of the more burdensome terms where not applicable to the 

nature and circumstances of Helton’s offense. She also 

considered the factors listed in 18 U.S.C. § 3553(a) and heard 

argument from both the government and defense counsel regarding 

the appropriate sentence for Helton. See id. at 172-91. Helton 

also made a statement directly to the court. See id. at 198-99. 

At the conclusion of his statement, the court sentenced 

defendant to a term of 60 months imprisonment, a downward 

departure from the Guidelines range, and a lifetime term of 

supervised release, comprised of a number of conditions specific 

to the defendant, including treatment for both substance abuse 

and psychosexual mental health. This appeal followed. 
6

II.

This court reviews a sentence imposed by a district court 

for reasonableness. See United States v. Booker, 543 U.S. 220, 

261 (2005). Sentencing is the province of the district court and 

in reviewing the chosen sentence, we consider only whether the 

sentencing judge abused her discretion rather than whether this 

court would impose the same sentence on a defendant in the 

appellant’s position. See Gall v. United States, 552 U.S. 38, 51 

(2007). This court will affirm a sentence when it is “within the 

statutorily prescribed range and is reasonable.” United States 

v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). Defendant contests 

only his term of supervised release, arguing that the lifetime 

term is procedurally and substantively unreasonable and should 

be vacated.

Even though the Sentencing Guidelines are now advisory, 

district courts “must consult those Guidelines and take them 

into account when sentencing.” Booker, 543 U.S. at 264. A 

sentence within the Guidelines range is presumed on appeal to be 

substantively reasonable. See Rita v. United States, 551 U.S. 

338, 347 (2007). Here, the lifetime term of supervised release 

was within both the Guidelines range and the statutory maximum. 

See 18 U.S.C. § 3583(k); U.S.S.G. § 5D1.2(b). However, that does 

not end the inquiry. For a sentence to be procedurally sound, a 

district judge must also consider the factors outlined in 18 
7

U.S.C. § 3553(a) and “articulate the reasons for selecting the 

particular sentence, especially explaining why [any] sentence 

outside of the Sentencing Guideline range better serves the 

relevant sentencing purposes set forth in § 3553(a).” United 

States v. Green, 436 F.3d 449, 456 (4th Cir. 2006). 

A.

Helton contends that his lifetime term of supervised 

release is procedurally unreasonable because the district court 

did not adequately explain why it chose that particular 

sentence. However, we find that the sentencing judge carefully 

and thoroughly explained the sentence at length. 

The district court walked through the calculation of the 

Guidelines range carefully at the sentencing hearing, during 

which neither party objected. It noted that defense counsel had 

asked for the court to consider that the majority of images did 

not depict sadistic or masochistic conduct, even though counsel 

did not object to the four-level enhancement for such images. 

See J.A. 158. The court considered arguments made by both 

parties at sentencing concerning the § 3553(a) factors and 

discussed the application of the factors in fashioning Helton’s 

particular sentence. 

The district judge granted a downward departure from the 

recommended term of imprisonment of 78 to 97 months, sentencing 

Helton to 60 months in prison. See J.A. 199, 172. She explained 
8

that the sentence of 60 months followed by a lifetime term of 

supervised release “provide[d] just punishment for the crime for 

which [Helton] pled guilty” because it both “reflect[ed] the 

seriousness of the offense” and would “deter [Helton] from 

committing criminal conduct in the future.” Id. at 206. 

Importantly, the judge further explained that given Helton’s age 

and lack of prior criminal convictions, a sentence of longer 

than 60 months “simply was not necessary,” id., especially in 

light of “the fact that [he would] be required to be on 

supervised release for life,” id. at 207-08. Although Helton’s 

prison term is not directly at issue before this court, the 

judge made clear that the length of the prison term and the 

length of the supervised release term were linked. She was only 

comfortable with the downward departure for the term of 

imprisonment because she knew that Helton would be subject to a 

lengthy term of supervised release. 

The judge also gave full and fair consideration to the 

§ 3553(a) factors that, she explained, require the court to 

consider, among other factors, the “nature and circumstances of 

the offense,” “the history and characteristics of the 

defendant,” and the need for the sentence imposed “to reflect 

the seriousness of the offense, to promote respect for the law, 

and to provide just punishment for the offense,” as well as “to 
9

provide the defendant with needed . . . medical care, or other 

correctional treatment.” 18 U.S.C. § 3553(a); see also J.A. 173.* 

Although the court must base the sentence on an 

individualized assessment, it need not “robotically tick 

through” the § 3553(a) factors. United States v. Johnson, 445 

F.3d 339, 345 (4th Cir. 2006). In crafting the sentence, the 

 

* Defense counsel argued before this court that the district 

court’s consideration of the § 3553(a) factors focused primarily 

on “the severity of [Helton’s] conduct, which is explicitly off 

limits when it comes to consideration of the supervised released 

term.” Oral Arg. at 13:35. We disagree with this 

characterization of the district court’s explanation. It is true 

that 18 U.S.C. § 3583, which provides “factors to be considered 

in including a term of supervised release,” 18 U.S.C. § 3583(c), 

does not include “the need for the sentence imposed to reflect 

the seriousness of the offense, to promote respect for the law, 

and to provide just punishment for the offense” or “the kinds of 

sentences available,” 18 U.S.C. § 3553(a)(2)(A), (a)(3). 

Notably, however, the statute allows for consideration of the 

factors listed in § 3553(a)(1): “the nature and circumstances of 

the offense and the history and characteristics of the 

defendant.” 18 U.S.C. § 3553(a)(1); see also 18 U.S.C. 

§ 3583(c). Here, we do not agree that the district judge focused 

only on the severity of Helton’s conduct. While she did state 

that she chose the 60 month sentence followed by a life term of 

supervised release to “provide[] just punishment for the crime 

for which [Helton] pled guilty” and to “reflect[] the 

seriousness of the offense,” J.A. 206, she further noted that 

she had considered “the nature and circumstances of [Helton’s] 

offense, as well as [his] history and characteristics.” Id. She 

specifically outlined how, in determining the proper sentence 

and the conditions of supervised release, she had balanced his 

youth and lack of criminal history against his admitted cycle of 

downloading and deleting child pornography, the period of months 

over which he had collected the images, his mental health

history, and his admitted history of viewing child pornography 

and his sexual abuse of a three-year old child in foster care. 

See id. at 207.
10

judge took note of both individual characteristics of the 

defendant and the particular offense conduct in this case. She 

considered that Helton was only “21 years old and appearing 

[before the court] on [his] first criminal conviction.” J.A. 

206. The court also considered Helton’s extensive “mental health 

issues and [his] admissions to having viewed child pornography 

as a child” in determining “the need for this sentence to 

provide [Helton] with medical care and corrective treatment in 

the most effective manner.” Id. at 207.

On the other hand, the judge explained that while “only 42 

image files of child pornography were located in active 

folders,” the defendant had “engaged in repetitive cycles of 

downloading images, deleting them, and then searching for more,” 

over the course of seven months, which is exactly the “type of 

conduct [that] provides the market for child pornography which . 

. . often results in the abuse of minors.” Id. at 206-07. She 

also took notice of his admission that he had “sexually abused a 

three-year-old” when he was previously in foster care. Id. at 

207. 

Furthermore, the judge took into account a number of 

individualized considerations in shaping the conditions that 

attach to defendant’s term of supervised release. Considering 

the defendant’s admission to significant alcohol and marijuana 

use, id. at 197, and noting that he did not have “a low risk of 
11

future substance abuse,” id. at 200, she required him to 

participate in a substance abuse treatment program. She also 

required Helton to “submit to a psychosexual evaluation by a 

qualified mental health professional,” “complete [any resulting] 

treatment recommendations,” and “take all medications as 

prescribed.” Id. at 201. She also imposed a number of conditions 

regarding his status as a sex offender and limiting his ability 

to interact with minors. Id. at 201-04.

However, the district court also, in response to a request 

from defense counsel, removed several of the more onerous terms 

of supervised release, finding them unnecessarily harsh in light 

of the circumstances of the case. Id. at 165-68. The judge noted 

that the “terms and conditions of supervised release should have 

some reasonable basis given the facts and circumstances of the 

offense such that they accomplish the purposes that are intended 

by supervised release.” Id. at 166. Finding that there was “no 

basis in this particular case,” she declined to require 

“defendant to carte blanche afford access to his financial 

information” unless there “is some indication that there is 

something [such as a computer or cell phone with internet 

capacity] purchased that should not have been.” Id.

She also declined to impose a condition preventing the 

defendant from purchasing cameras, explaining that there was “no 

evidence in this case that the defendant took pornographic 
12

photos or videos of children.” Id. at 167-68. Despite objection 

from defense counsel, she kept in place the condition preventing 

defendant from purchasing or owning a cell phone with internet 

capability, explaining that it was “appropriate given the facts 

and circumstances of this case.” Id. at 167. Defense counsel 

repeatedly requested a fifteen year term of supervised release, 

but the judge rejected that in favor of a longer term coupled 

with a downward departure in the length of Helton’s term of 

imprisonment. See id. at 176, 190, 208.

In light of this lengthy explanation, we find no procedural 

error in what the district court did. The Guidelines range was 

properly calculated. The term of supervised release was within 

the Guidelines range and within the permissible statutory 

authorization. The defendant received a downward departure in 

his prison term, which was clearly linked to a longer term of 

supervised release. The defendant wants additional explanation, 

specific to the term of supervised release, but we find the 

district court satisfactorily explained both pieces of the 

sentence at great length. 

We do not dispute that there must be sufficient explanation 

for a sentence to be procedurally reasonable. But we take no 

issue with what the district court did here. We find the 

district court’s thorough explanation sufficient on both the 

sentence as a whole and the term of supervised release 
13

specifically. To require more explanation would unnecessarily 

intrude upon the district court’s primary and unique role in the 

sentencing process. 

B.

Helton also contends that his lifetime term of supervised 

release is substantively unreasonable because it is longer than 

necessary to further the goals of supervised release itself and 

was not justified by Helton’s offense. See Appellant’s Br. at 

12. We disagree. A lifetime term of supervised release is 

authorized by statute and within the Sentencing Guidelines 

range. See 18 U.S.C. § 3583(k) (“[T]he authorized term of 

supervised release for any offense under section . . . 2252A . 

. . is any term of years not less than 5, or life.”); see also

U.S.S.G. § 5D1.2 (“[T]he length of the term of supervised 

release . . . may be up to life, if the offense is . . . a sex 

offense.”). Furthermore, the U.S. Sentencing Commission 

specifically included an advisory policy statement in the 

Guidelines Manual that suggests it is the judgment of the 

Sentencing Commission that in the case of sex offenses “the 

statutory maximum term of supervised release is recommended.” 

District courts are permitted to consider a wide variety of 

information during the course of a sentencing proceeding. See

Alleyne v. United States, 133 S. Ct. 2151, 2163 n.6 (2013) 

(“[J]udges may exercise sentencing discretion through ‘an 
14

inquiry broad in scope, largely unlimited either as to the kind 

of information [they] may consider, or the source from which it 

may come.’”) (alteration in original) (quoting United States v. 

Tucker, 404 U.S. 443, 446 (1972)). Here, the district judge 

considered the defendant’s lengthy history of viewing child 

pornography, his admitted repetitive pattern of downloading 

material, deleting it, and seeking out more. She also considered 

that he admitted to abusing a three-year old when he was a minor 

in foster care and that he had sought help for his compulsion to 

view child pornography but had been unable to stop. 

Furthermore, the district court granted defendant a 

downward variance in his prison term, remarking that she was 

comfortable doing so because he would be subject to a lengthy 

term of supervised release. It would be almost unprecedented to 

credit a defendant’s challenge to a sentence as substantively 

unreasonable when the district court actually reduced the term 

of imprisonment below the recommended Guidelines range. 

Moreover, the court modified the conditions of supervised 

release, alleviating some of the more burdensome requirements 

that she thought inappropriate for Helton given the offense and 

circumstances of this case and this defendant. Helton can still 

petition for a modification or termination of his term of 

supervised release at any time after one year of supervised 

release, provided it is justified by his conduct and in the 
15

interest of justice. See 18 U.S.C. § 3583(e)(1); U.S.S.G. 

§ 5D1.2 n.5. Given these circumstances, we cannot find the 

district court’s conclusion unreasonable that a lifetime of 

supervised release was necessary to deter defendant, protect the 

public from additional crimes by him, and provide him with the 

mental health care and necessary corrective treatment he needs. 

Trial courts have significant discretion in the sentencing 

process, and we see nothing in this case to suggest that this 

discretion was abused in a manner that would render this 

sentence substantively or procedurally unreasonable. The 

judgment is accordingly affirmed.

AFFIRMED
17

GREGORY, Circuit Judge, concurring in the majority opinion:

I commend the district court’s exercise of its discretion 

in fashioning Steven Helton’s sentence in this very difficult 

case. Five years in prison is well enough for the 21 year-old 

with no prior criminal convictions, who was physically and 

sexually abused by his stepfather, who grew up in multiple 

foster care homes since the age of six, and who was caught with 

42 image files of child pornography on his computer.1

 J.A. 195, 

206.2 And, as the majority notes, the district court imposed the 

supervised release portion of Helton’s sentence in conjunction 

with a downward variance from the applicable advisory Guideline 

range. The district court displayed courage in varying 

downward, and in crafting an appropriate, individualized 

sentence.

I.

The district court chose a sentence of 60 months of 

imprisonment followed by a lifetime term of supervised release 

for Helton’s knowing possession of child pornography in 

violation of 18 U.S.C. § 2252(a)(5)(B) and 2252A(b)(2). Helton 

 1 As the majority notes, only 42 of the 961 image files 

recovered by forensic investigators from Helton’s computer were 

actively accessible for viewing. It appears the remaining files 

were thumbnail-sized images automatically generated by the 

Windows operating system.

2 Citations to the J.A. refer to the parties’ Joint Appendix 

filed in this case. Specifically, the facts referenced herein 

are contained in the sentencing hearing transcript.
18

appeals only the supervised release portion of his sentence. I 

agree with the majority that the district court committed no 

procedural error by adequately explaining why it thought this 

particular punishment sufficient to meet the goals of 

sentencing.

As is well known, reasonableness includes both procedural 

and substantive components. See United States v. Carter, 564 

F.3d 325, 328 (4th Cir. 2009). “Procedural errors include 

‘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.’” Id. (quoting Gall v. United States, 552 

U.S. 38, 51 (2007)). Above all, the district court “must make 

an individualized assessment based on the facts presented.” 

Gall, 552 U.S. at 50. In other words, the district court should 

“consider every convicted person as an individual and every case 

as a unique study in the human failings that sometimes mitigate, 

sometimes magnify, the crime and the punishment to ensue.” 

Carter, 564 F.3d at 328.

Among the human failings the district court took into 

account at sentencing was that Helton’s father abandoned him as 

a baby. J.A. 195. His mother suffered various mental health 
19

problems. J.A. 195. When Helton was six years old, his 

stepfather physically and sexually abused him and his sister. 

J.A. 195. Both were placed with an aunt who drank and 

physically abused the children. J.A. 195. Helton was then 

removed to foster care, where he was found viewing child 

pornography. J.A. 195. It was during this time that Helton 

also admits he sexually abused a minor child. J.A. 195. When 

he was fourteen, Helton attended a mental health/sex offender 

treatment facility for two and a half years. J.A. 195. Next, 

he moved to a facility called the Burlington United Family 

Methodist Services, and things started to look up; while at 

Burlington, Helton obtained his GED and even enrolled in 

Fairmont State College. J.A. 195-97. He withdrew before 

completing the first semester, however, and at the age of 

eighteen returned to his mother’s home.3

 J.A. 196-7. He became 

his disabled mother’s caretaker and began abusing alcohol and 

other drugs himself. J.A. 196-97. He was nineteen when the 

police caught him in possession of child pornography.

It is against this backdrop that the district court 

emphasized that it was careful to sentence Helton “only for the 

 3 According to Helton, upon matriculating he was told he had 

not completed the requisite financial aid forms. Without any 

adult assistance to navigate the system, and having “graduated” 

from foster care, he was forced to withdraw from college and 

return to his mother’s residence.
20

offense to which [he] pled guilty.” The court explained that it 

chose a sentence “sufficient to protect the public . . . and to 

avoid unwarranted disparities in sentencing of defendants of 

similar backgrounds and similar violations.” In doing so, the 

court balanced Helton’s age and lack of criminal convictions 

against his engaging in “repetitive cycles of downloading,” 

which “provides the market for child pornography” and “often 

results in the abuse of minors.” In the end, the district court 

decided “a sentence of incarceration longer than 60 months 

simply is not necessary to meet the goals of sentencing,” 

especially in consideration of the lifetime term of supervised 

release. The court further “considered the need for th[e] 

sentence to provide . . . medical care and corrective 

treatment,” leading to the special conditions of release 

including participation in medical evaluations and treatment.

There is no doubt that this explanation, following the 

district court’s painstaking recollection of Helton’s 

unfortunate childhood, was sufficiently individualized to meet 

the requirements of procedural reasonableness.

II.

Helton’s appeal of the substantive reasonableness of his 

lifetime term of supervised release is a closer question. As 

the majority rightly recognizes, a district court enjoys wide 
21

discretion in sentencing. The district court “is in a superior 

position to find facts and judge their import,” United States v. 

Diosdado-Star, 630 F.3d 359, 366 (4th Cir. 2011), but appellate 

courts nevertheless play an important role in reviewing whether 

an abuse of that discretion has occurred. In reviewing 

substantive reasonableness, we measure the sentence against the 

statutory sentencing factors while “tak[ing] into account the 

totality of the circumstances.” Gall, 552 U.S. at 51; see also

United States v. Montes-Pineda, 445 F.3d 375, 378 (4th Cir. 

2006).

Helton’s burden on appeal is a difficult one to meet 

considering that a lifetime term of supervised release is indeed 

within the advisory Guidelines range and the maximum term 

authorized by statute. See U.S.S.G § 5D1.2; 18 U.S.C.

§ 3583(k). Ultimately the district court was faced with the 

history and characteristics of someone who admitted to having 

previously abused a child and who furthermore reverted to 

viewing child pornography after having completed years of a 

residential sex offender treatment program. J.A. 195. While 

there is a continuing debate on the linkage between possession 

of child pornography and sexual abuse of minors, it was not 

improper for the district court to consider the need “to afford 

adequate deterrence,” id. § 3553(a)(2)(B), and “to protect the 

public from further crimes of the defendant,” id.
22

§ 3553(a)(2)(C). In the totality of the circumstances, it is 

fair to say that Helton will benefit not from more time in 

prison, but from long-term supervision and compliance with drug 

dependency and psychosexual treatment programs. Therefore, even 

though I regret that Helton can see no redemptive light at the 

end of his long road to recovery, I cannot say the district 

court abused its discretion.

It is this same ambivalence, however, about offenders like 

Helton never being able to fully rejoin society as rehabilitated 

individuals that leads me to warn against undue deference to 

what are only advisory Guidelines. When we begin to accept 

these Guidelines as irrefutable truths, we tend to give 

ourselves to overgeneralizations like that made by the majority 

when it writes: “It would be almost unprecedented to credit a 

defendant’s challenge to a sentence as substantively 

unreasonable when the district court actually reduced the term 

of imprisonment below the recommended Guidelines range.” To the 

contrary, it can be unreasonable for a twenty-one year old with 

no prior criminal convictions to spend five years in prison even 

when the Guidelines advocate for a minimum term of six and a 

half years. And it can be unreasonable for that young man to 

have to ask his probation officer for permission to purchase a 

toy when, some great day later in his lifetime of supervision by 

the government, he becomes a grandparent.
23

The child pornography Guideline has been recognized as an 

“eccentric Guideline of highly unusual provenance which, unless 

carefully applied, can easily generate unreasonable results.” 

United States v. Dorvee, 616 F.3d 174, 188 (2d Cir. 2010). For 

example, a defendant convicted of distributing child pornography 

over the Internet but who has never had any contact with a minor 

can receive a greater sentence than an individual who seeks out 

a minor online, arranges a meeting, and actually abuses the 

child. See id. at 176, 187. The Guideline also frequently 

punishes first time offenders with the same severity as more 

culpable offenders. This is because several of the § 2G2.2 

enhancements of a defendant’s base offense level are broadly 

defined and present in nearly all Internet child pornography 

cases, like an enhancement for using a computer. See, e.g., 

United States v. Burns, No. 07 CR 556, 2009 WL 3617448, at *7 

(N.D. Ill. Oct. 27, 2009) (“[M]ost of the enhancements provided 

for in § 2G2.2 are of little use in distinguishing between 

offenders.”). Statistics show that in non-production cases in 

fiscal year 2013, a two-level enhancement for using a computer 

applied in 95% of cases, a two-level enhancement for involvement 

of a child victim under the age of 12 (that is, a prepubescent 

minor) applied in 96% of cases, and a five-level enhancement for 
24

600 or more images applied in 79% of cases.4 Such realities have 

led the Sentencing Commission to conclude that § 2G2.2 “places a 

disproportionate emphasis on outdated measures of culpability,” 

resulting in “penalty ranges [that] are too severe for some 

offenders and too lenient for other[s].”5

These limitations are the result of the Guideline having 

been “developed largely pursuant to congressional directives,” 

as opposed to the Sentencing Commission’s expertise. United 

States v. Grober, 624 F.3d 592, 608 (3d Cir. 2010); see also id.

(“[T]o say that the final product is the result of Commission 

data, study, and expertise simply ignores the facts.”). 

Congress has been “particularly active” in directing the 

Commission to increase base offense levels and impose various 

enhancements, which has resulted in a dramatic rise in penalties 

over the years.6 These changes have taken place in the face of 

 4 U.S. Sentencing Comm’n, Use of Guidelines and Specific 

Offense Characteristics 40-41 (2013), available at

http://www.ussc.gov/sites/default/files/pdf/research-and-publica

tions/federal-sentencing-statistics/guideline-applicationfrequencies/2013/Use_of_Guidelines_and_Specific_Offense_Characte

ristics_Guideline_Calculation_Based_Revised.pdf. 5 U.S. Sentencing Comm’n, Federal Child Pornography Offenses 

xvii (2012), available at http://www.ussc.gov/

sites/default/files/pdf/news/congressional-testimony-and-reports

/sex-offense-topics/201212-federal-child-pornography-offenses/

Full_Report_to_Congress.pdf [hereinafter Report to Congress].

6 U.S. Sentencing Comm’n, The History of the Child 

Pornography Guidelines 1 (2009), available at

http://www.ussc.gov/sites/default/files/pdf/research-and-publica 

(Continued)
25

resistance by the Commission, and in the form of Congress taking 

the unprecedented step of directly amending the Guidelines.7 

Thus, like the former crack cocaine Guidelines, the child 

pornography Guideline “do[es] not exemplify the Commission’s 

exercise of its characteristic institutional role,” which is to 

propose penalties “base[d on] its determinations on empirical 

data and national experience, guided by a professional staff 

with appropriate expertise.” Kimbrough v. United States, 552 

U.S. 85, 108-09 (2007). For, what the data actually shows is 

that 70% of district court judges in 2010 thought the Guideline 

too severe for crimes of possession.8 And, in fiscal year 2013, 

district courts imposed a sentence below the Guideline range in 

718 of 1,626 non-production cases.9

This is why, when we talk about the slippery concept of 

reasonableness, we should be cautious of presuming that the 

 

tions/research-projects-and-surveys/sex-offenses/20091030_

History_Child_Pornography_Guidelines.pdf.

7 See Melissa Hamilton, The Efficacy of Severe Child 

Pornography Sentencing: Empirical Validity or Political 

Rhetoric?, 22 Stan. L. & Pol’y Rev. 545, 556 (2011).

8 U.S. Sentencing Comm’n, Results of Survey of United States 

District Judges January 2010 Through March 2010, Question 8 

(2010), available at http://www.ussc.gov/sites/default/files/

pdf/research-and-publications/research-projects-and-surveys/

surveys/20100608_Judge_Survey.pdf. 9 U.S. Sentencing Comm’n, 2013 Sourcebook of Federal 

Sentencing Statistics, Table 28, available at

http://www.ussc.gov/research-and-publications/annual-reportssourcebooks/2013/sourcebook-2013; see also id. app. A (defining 

“Below Guideline Range with Booker/18 U.S.C. § 3553”).
26

child pornography Guideline – as well as the Guideline for 

supervised release of child pornography offenders – always 

provides a reasoned departure point from which to calculate a 

sentence. Like much of the judiciary, the Commission does not 

view the Guideline this way for a defendant like Helton 

convicted of a non-production offense. In fact, the Commission 

has asked Congress to give it the authority to amend those 

provisions resulting from the legislature’s directives.10 It 

believes these amendments necessary “to better promote the 

purposes of punishment by accounting for the variations in 

offenders’ culpability and sexual dangerousness.”11 Though 

recommended in 2012, these changes are still forthcoming. 

Luckily, in the meantime, there are judges like Judge Berger who 

understand that the totality of the circumstances sometimes 

requires a below-Guideline term to ensure a sentence is 

substantively reasonable.

 10 See Report to Congress, supra note 5, at 322.

11 Id. at xvii. The Commission is also considering revising 

§ 5D1.2 so that, as opposed to its current blanket 

recommendation of the statutory maximum for child pornography 

offenders, it would actually “provide[] guidance to judges to 

impose a term of supervised release . . . that is tailored to 

[an] individual offender’s risk and corresponding need for 

supervision. Id. at xix.
27

III.

We measure our humanity by the justice we mete to those 

thought least deserving. I join the majority in affirming the 

district court, which I believe did an admirable job crafting an 

individualized sentence. Perhaps in the future, our Guidelines 

will evolve to become truly proportional to the severity of our 

crimes. And perhaps then, a district court will not be in the 

lamentable position of having to balance the need to depart 

downward from an excessive Guideline term with an entire 

lifetime of supervision.