In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-1393

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

JEREMY GOLDBERG,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 CR 922—Joan B. Gottschall, Judge.

____________

SUBMITTED MAY 29, 2007—DECIDED JUNE 27, 2007

____________

Before BAUER, POSNER, and WILLIAMS, Circuit Judges.

POSNER, Circuit Judge. The government appeals from

the imposition of a sentence of one day in prison, time

served, for a violation of the Child Pornography Prevention Act of 1996. The specific section of the Act that the

defendant violated, 18 U.S.C. § 2252A(a)(5)(B), authorizes,

so far as bears on this case, the imposition of a maximum

prison sentence of 10 years on anyone who “knowingly

possesses any book, magazine, periodical, film, videotape,

computer disk, or any other material that contains an

image of child pornography that has been mailed, or

shipped or transported in interstate or foreign commerce
2 No. 07-1393

by any means, including by computer.” For the defendant’s

particular offense, the federal guidelines sentence range

was at least 63 to 78 months—“at least” because, as noted

at the end of this opinion, it appears to have been miscalculated in the defendant’s favor.

The judge imposed a nominal prison sentence, though

her preference was to impose no prison sentence at all,

because without imposing a prison sentence she could not

have imposed supervised release. The statute that authorizes supervised release, 18 U.S.C. § 3583(a), states that “the

court, in imposing a sentence to a term of imprisonment

for a felony or a misdemeanor, may include as a part of

the sentence a requirement that the defendant be placed

on a term of supervised release after imprisonment.” The

Sentencing Commission understands supervised release to

presuppose a prison sentence. See U.S.S.G. ch. 7, pt. A,

§ 2(b); see also United States v. Sanchez-Estrada, 62 F.3d 981,

994 (7th Cir. 1995).

The defendant, who is now 23 years old, is the son of a

prosperous couple in the wealthy Chicago suburb of

Highland Park. He downloaded file-sharing software

that gave him access to a web site called “#100%

PreTeenGirlPics.” Over a period of some 18 months, he

downloaded hundreds of pornographic photographic

images, some depicting children as young as 2 or 3 being

vaginally penetrated by adult males. He offered these

images to other subscribers to the web site to induce them

to send similar images in return. He masturbated while

viewing the pornographic images. He has a history of

drug abuse. His lawyers describe him as a “normal young

adult.”

The district judge justified the remarkably light sentence that she gave the defendant as follows:
No. 07-1393 3

It’s a very, very difficult case, but I have concluded

that I’m going to begin with a lengthy period of supervision rather than a period of incarceration, with the

idea that it’s going to be very intensive, and if there is

a problem, Mr. Goldberg is going to go away for a very

long time.

But the way I look at this case, . . . I think that if

I sent Mr. Goldberg away for 63 months or anything

close to it with the hope that he gets sex offender

treatment in prison, we’re pretty much guaranteeing

his life will be ruined. And I think there’s some possibility here that his life can go in a different way, and

I’d like to try that, but I’m very worried, because

what’s gone on here is very, very difficult for me to

deal with. I mean, these pictures, I can’t even bear to

look at them they’re so horrible. And what spiraling

downward does to you so that you can stand looking

at pictures like that I don’t know, but it’s spiraling

pretty far downward.

The guidelines allow me to place Mr. Goldberg,

and I’m going to . . . I don’t know what our current

word is . . . deviate from the guidelines under 3553,

and I’m going to impose a period . . . as I said, the

supervised release can be any years up to life. I’m

going to impose a ten-year period of supervised

release.

It’s more supervised release than I have ever imposed before, but I really think that given the psychiatric reports and given what transpired here, that the

period of supervision has to be long enough to ensure

that if Mr. Goldberg turns his life in a different direction he does it for a long time.
4 No. 07-1393

I also want to make sure that if there is

further . . . any evidence of further problem, that the

Court retains a handle over Mr. Goldberg for a long

time.

Now, during that period of supervision, I really

need a little help in figuring out . . . and I have been

trying to get the lawyers to give it to me, but I don’t

know that I’ve gotten it yet. Maybe it depends on what

kind of financial commitment people are able to make,

I don’t know, but I need to have close supervision in

both the drug area and in the therapy area to make

sure that we’re not having a problem here. And I know

that . . . I think Ms. Cohen is the one who suggested

some kind of periodic polygraph examinations, and

I think that should be an important part of this.

.* * *

I think I better now talk about why under Section

3553 I deviated from the guidelines. My reason in this

case is less . . . well, it’s this: It’s considering the history

and characteristics of the defendant I think that there’s

a substantial likelihood . . . and also considering the

psychiatric reports, that this offense was committed

out of boredom and stupidity and not because Mr.

Goldberg has a real problem with the kind of deviance

that these cases usually suggest. I believe that if that

is correct, and if he is sent to prison for a lengthy

period, anything of any consequence at all, I think it’s

going to ruin his life in many ways.

I think that sex offender treatment within the Bureau

of Prisons is going to expose him to people who are

dangerous to him. I think any substantial period of

incarceration is going to ensure that he’s not able to
No. 07-1393 5

take advantage of his education and get a good job, and

I think all of this will reinforce whatever negative

things he’s done in the past rather than pushing him

in a positive direction.

I recognize that the viewing of child pornography

over the Internet destroys the lives of young children,

but I also recognize that the life that I’m concerned

with here, the life that I can affect, is Mr. Goldberg’s

life, and I don’t want to destroy his life in the hope that

maybe in some very indirect way it’s going to help

somebody else’s life. I don’t think it is. And I would

like, if I can, to support him in putting his life on a

positive direction rather than in destroying it.

The reason for the long period of supervision and the

close supervision that I believe I’ve required is to make

sure that if he indeed represents a threat, and if I’m

wrong in my assessment of what went on here, that we

are able to catch it before any damage is done.

This is kind of an odd balancing of factors under

3553, but I think I do have the discretion in an unusual

case like this one to choose not to incarcerate and to

choose close supervision to see what transpires over

the next few years.

There is also a brief “statement of reasons” appended to

the original judgment that the judge entered. But it is

omitted from the amended judgment (entered because the

original judgment was discovered to contain clerical errors)

and is not in the appellate record, although the defendant’s

counsel quotes from it in his brief and the clerk of the

district court has found a copy for us. In the oral statement,

which we just quoted, the grounds on which the judge

justified the sentence were that the defendant was not a

real deviant because he had committed the crime out of
6 No. 07-1393

“boredom and stupidity,” that it would ruin his life to be

imprisoned because he would be exposed to “people

who are dangerous to him,” and that his life, rather than

the lives of the small children who had been raped in

order to enable the creation of sadistic child pornography

to assist the defendant in masturbating, was the only “life

that I can affect.” The written statement of reasons is

similar. In it the judge attributes the defendant’s pornographic activity to boredom resulting from his being

confined at home as a result of being convicted of a drug

offense and states that he “has normal sexual interests

and is not a pedophile, internet or otherwise.” She states

that “no one argues that any actual children are at risk

from any conduct of [the defendant] (other than the harm

to children who are used to make images used on the

internet),” but she assigns no weight to that harm—the

harm to the children—consistent with her oral statement

that the only life she can affect by her sentence is the

defendant’s. The written statement assigns weight to the

fact that if the defendant is sent to prison, “his education will be interrupted.”

These grounds, and the passages we quoted in which

they appear, do not comply with the requirement that the

sentencing judge conscientiously consider the factors set

forth in 18 U.S.C. § 3553(a) to guide sentencing. Those

factors, so far as pertain to this case, are

(1) the nature and circumstances of the offense and

the history and characteristics of the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote

respect for the law, and to provide just punishment for

the offense;
No. 07-1393 7

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the

defendant; and

* * *

(6) the need to avoid unwarranted sentence disparities

among defendants with similar records who have

been found guilty of similar conduct.

A prison sentence of one day for a crime that Congress

and the American public consider grave, in circumstances

that enhance the gravity (we refer to the character of

some of the images), committed by a convicted drug

offender, does not give due weight to the “nature and

circumstances of the offense” and the “history and characteristics of the defendant.” It does not “reflect the seriousness of the offense,” “promote respect for the law,” or

“provide just punishment for the offense.” It does not

“afford adequate deterrence to criminal conduct.” And it

creates an unwarranted sentence disparity, since similarly

situated defendants are punished with substantial prison

sentences. See, e.g., United States v. Lange, 445 F.3d 983

(7th Cir. 2006); United States v. Grigg, 442 F.3d 560 (7th

Cir. 2006); United States v. Baker, 445 F.3d 987 (7th Cir.

2006); United States v. Perez, No. 06-50041, 2007 WL 1065784

(5th Cir. Apr. 11, 2007); United States v. Nikonova, 480 F.3d

371 (5th Cir. 2007); United States v. Rolfsema, 468 F.3d 75 (1st

Cir. 2006); United States v. Branson, 463 F.3d 1110 (10th Cir.

2006). United States v. Grinbergs, 470 F.3d 758 (8th Cir. 2006),

reversed a sentence of a year and a day (a sentence 366

times longer than the sentence imposed by the district

judge in this case) imposed on a defendant who had

pleaded guilty to one count of possessing child pornography and faced a guidelines sentence of 46 to 57 months in
8 No. 07-1393

prison, lower than our defendant’s guidelines sentencing

range.

It is true as the defendant points out that the statute

under which he was convicted contains no mandatory

minimum. But it does not follow that Congress envisaged

no prison time for violators. The absence of a mandatory

minimum sentence may signify no more than that the

legislature did not want to take the time to try to determine

what the minimum sentence should be or did not think it

could anticipate unusual cases in which a light sentence

might be appropriate. We can imagine a case, involving

the downloading of a handful of images none showing

any prepubescent child or depicting any sexual activity,

yet still constituting child pornography (the statute defines “child” as any minor and “pornography” as including

besides actual sexual activity “lascivious exhibition of

the genitals or pubic area,” 18 U.S.C. §§ 2256(1), (2)(A)(v)),

in which a permissible sentence might be light. The

hundreds of images in this case include as we have noted

images of prepubescent children being penetrated by

adults.

The district judge was influenced by the erroneous belief that a sentence affects only the life of the criminal and

not the lives of his victims. Young children were raped

in order to enable the production of the pornography that

the defendant both downloaded and uploaded—both

consumed himself and disseminated to others. The greater

the customer demand for child pornography, the more that

will be produced. E.g., Osborne v. Ohio, 495 U.S. 103, 109-11

(1990); United States v. Barevich, 445 F.3d 956, 959 (7th Cir.

2006); United States v. Richardson, 238 F.3d 837, 839 (7th Cir.

2001); United States v. Angle, 234 F.3d 326, 337-38 (7th Cir.

2000). Sentences influence behavior, or so at least Congress
No. 07-1393 9

thought when in 18 U.S.C. § 3553(a) it made deterrence a

statutory sentencing factor. The logic of deterrence suggests that the lighter the punishment for downloading

and uploading child pornography, the greater the customer

demand for it and so the more will be produced.

Why the fact that the defendant committed the offense

out of “boredom and stupidity,” if it were a fact, should

be thought a mitigating factor escapes us and was not

explained by the judge. Anyway it is not a fact; the defendant obtained sexual gratification from the pornographic

images that he so sedulously collected. It is also inconsistent with the 10-year term of supervised release that the

judge imposed, which includes conditions that require

the defendant’s participation in programs for the psychological treatment of sex offenders.

The judge’s suggestion that the defendant does not

have “a real problem” could be interpreted to mean that

she disparages Congress’s decision to criminalize the

consumption and distribution of child pornography,

perhaps because she thinks that only people who actually

molest children, rather than watching them being molested, have “a real problem.” This interpretation is

reinforced by her statement elsewhere in the transcript of

the sentencing hearing that the defendant’s crime was

just “a kind of mischief.” This characterization cannot be

reconciled with the judge’s having fully credited (as she

said she did) the report of a psychologist who stated

that the defendant has been using pornography for more

than a decade, that he “believed he was smart enough not

to get caught and if he were caught he believed he would

not have any consequences,” that he has “little knowledge,

understanding or empathy for the little girls depicted in

the images,” that “he began using pornography when he
10 No. 07-1393

was 12-13 and continues to fantasize about the same age

girls he looked at then,” that he has “persistent sexual

interest in adolescent males and females,” that he is a

“pedophile,” that he “has admitted to other deviant

behaviors, namely voyeurism, scatological phone calls

and the stealing of a 14 year old girl’s panties,” that he

has “sociopathic traits,” that “he doesn’t think of the

consequences of his behavior,” that “he has had two

convictions within two years,” and that “he has little

respect for the law or social conventions.”

The district judge’s assertion “that sex offender treatment

within the Bureau of Prisons is going to expose [the

defendant] to people who are dangerous to him” is ill

informed. Sex-offender treatment in federal prisons is

voluntary. Statement of Andres E. Hernandez, Director

of the Sex Offender Treatment Program Federal Correctional Institution Butner, N.C., Concerning “Sexual Exploitation of Children Over the Internet: The Face of a

Child Predator and Other Issues,” Before the H. Subcomm.

on Oversight and Investigations of the H. Comm. on

Energy and Commerce, 152 Cong. Rec. D1035-01, D1038

(Sept. 26, 2006), http://projectsafechildhood.gov/

HernandezTestimonyCongress.pdf, p. 2 (visited June 1,

2007). And “the vast majority” of sex offenders in the

program are individuals convicted of “Possession, Receipt,

Distribution, and Transportation of Child Pornography,”

like the defendant. Id. at 3. The judge gave no explanation for why she thought a prison sentence would be

more ruinous for the defendant than for any other imprisoned criminal other than her mistaken belief that he

would be thrown in with violent sexual offenders.

The judge’s balancing of the section 3553(a) sentencing

factors was indeed “odd,” as she acknowledged, but, more
No. 07-1393 11

to the point, it was unreasonable. United States v. Roberson,

474 F.3d 432, 435 (7th Cir. 2007); United States v. Repking,

467 F.3d 1091, 1094 (7th Cir. 2006) (per curiam); United

States v. Walker, 447 F.3d 999, 1007 (7th Cir. 2006). When the

guidelines, drafted by a respected public body with access

to the best knowledge and practices of penology, recommend that a defendant be sentenced to a number of years

in prison, a sentence involving no (or, as in this case,

nominal) imprisonment can be justified only by a careful,

impartial weighing of the statutory sentencing factors. It

may not be based on idiosyncratic penological views

(such as that the severity of criminal punishment has no

significance for the victims of crime, but only for the

criminals), disagreement with congressional policy, or

weighting criminals’ interests more heavily than those of

victims and potential victims. See, e.g., United States v.

Grinbergs, supra, 470 F.3d at 759; United States v. Davis, 458

F.3d 491, 498-500 (6th Cir. 2006); United States v. Martin, 455

F.3d 1227, 1239-42 (11th Cir. 2006); United States v. Crisp,

454 F.3d 1285 (11th Cir. 2006); United States v. Robinson,

454 F.3d 839 (8th Cir. 2006); United States v. Cage, 451 F.3d

585, 595-96 (10th Cir. 2006). The judge neglected considerations of deterrence and desert, which dominate the

federal criminal code, in favor of undue emphasis on

rehabilitation, and seemed even to think that any prison

sentence, however short, is inconsistent with rehabilitation.

That is not the theory of either the criminal code or the

Sentencing Reform Act, which actually downplays the

significance of rehabilitation as a penological goal by

rejecting imprisonment as a means of promoting it. 28

U.S.C. § 994(k); Mistretta v. United States, 488 U.S. 361, 367

(1989); Kerr v. Puckett, 138 F.3d 321, 324 (7th Cir. 1998).

Finally, the guidelines sentencing range appears to have

been miscalculated. The district judge did not make the
12 No. 07-1393

upward adjustment required by U.S.S.G. § 2G2.2(b)(3) for

sadistic images, even though at the sentencing hearing

the government pointed out that some of the images on

the defendant’s computer involved “bondage of these

young children” and “sadistic and masochistic sexual

activity with these children,” as well as girls “as young

as two and three years old being vaginally penetrated

with an adult male penis.”

We do not rule that a sentence below a properly calculated guidelines range would have been improper in this

case. The guidelines are merely advisory, and the statutory

sentencing factors (a laundry list of incommensurables

which guides consideration but does not dictate the

sentence or even the sentencing range) leave plenty of

discretion to the sentencing judge. But that discretion

was abused in this case, and the judgment is therefore

reversed and the case remanded for resentencing.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-27-07