In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3097

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DENNIS GARTHUS,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 09 CR 441-1—William J. Hibbler, Judge.

ARGUED JUNE 14, 2011—DECIDED JULY 14, 2011

Before POSNER, ROVNER, and WOOD, Circuit Judges.

POSNER, Circuit Judge. The defendant pleaded guilty to

federal crimes of transporting, receiving, and possessing

child pornography and was sentenced to 360 months

in prison. 18 U.S.C. §§ 2252A(a)(1), (a)(2)(A), (a)(5)(B).

The guidelines sentencing range was 360 months to life;

the statutory minimum sentence was 180 months; he

was 44 years old when sentenced. His appeal challenges

his sentence on several grounds, of which the one most
2 No. 10-3097

emphasized by defense counsel is that the district court

improperly failed to consider her argument that the

defendant had had “diminished capacity” to avoid committing the crimes, a ground recognized by the sentencing guidelines as a possible justification for a lower

sentence. U.S.S.G. § 5K2.13; United States v. Miranda, 505

F.3d 785, 792 (7th Cir. 2007); United States v. Cunningham,

429 F.3d 673, 679 (7th Cir. 2005); United States v. Utlaut,

497 F.3d 843, 845 (8th Cir. 2007).

When arrested, the defendant had in his possession some 2000 downloaded photographs and videos

of prepubescent girls, most between 4 and 9 years old,

engaged in sexual activities; many of the photographs

and videos depicted violent sexual assaults on the children. Ten years earlier he’d been convicted in an Illinois

state court, and served a year in prison, for an offense

involving child pornography—and more: he had made

a video of himself cutting off a 14-year-old girl’s panties

and touching her vagina. He had been molesting her

since she was 10.

The defendant’s sexual interests focus on prepubescent

girls wearing panties (his screen name was Pantielover);

he is also attracted to adult women, at least when they

are wearing pantyhose, but he has never had a girlfriend

or, apparently, any adult sexual relationship. He has

been diagnosed with “pedophilia, sexually attracted to

females, nonexclusive type.”

Diminished capacity in federal sentencing law refers

to cognitive or psychological limitations that fall short

of insanity, severe mental retardation, or dementia but
No. 10-3097 3

contributed in one of two ways (or both) to the

crime for which the defendant is being sentenced: by reducing—though not eliminating—his ability to appreciate the wrongfulness of his acts, or by reducing his

ability to avoid committing them. U.S.S.G. § 5K2.13

Application Note 1; United States v. Roach, 296 F.3d 565,

568 (7th Cir. 2002). It is thus an attenuated version of

the standard insanity defense.

Why diminished capacity in this sense (or senses)

should be a mitigating factor in sentencing is obscure.

The diminution makes a defendant more likely to

repeat his crime when he is released from prison. That

is especially so when the crime involves compulsive

behavior, such as behavior driven by sexual desire.

United States v. Rogers, 587 F.3d 816, 821 (7th Cir. 2009);

United States v. Cunningham, 103 F.3d 553, 556 (7th Cir.

1996); Doe v. Sex Offender Registry Board, 857 N.E.2d 473,

482-83 (Mass. 2006); People v. Earle, 91 Cal. Rptr. 3d 261,

282-83 and n. 16 (App. 2009). Such behavior requires

active resistance by the person tempted to engage in it, if

it is to be avoided; and diminished capacity weakens

the ability to resist. One of the defendant’s experts

opined that the defendant’s ability to resist could be

strengthened substantially with medication and therapy.

But both defense experts believed, and defense counsel

argued, that he wouldn’t get proper treatment in prison.

That is very damaging to the argument that he won’t

recidivate, since by virtue of the statutory minimum he

will spend many years in prison and when released may

be unable to resist his criminal impulses because his

condition will not have been treated effectively in prison.
4 No. 10-3097

From a “just deserts” standpoint, diminished capacity

argues for a lighter sentence, but from the standpoint

of preventing recidivism it argues for a heavier one.

The heavier sentence may not deter a criminal from

repeating his crime when he is released (that is implied

by saying he has diminished capacity), but it will reduce

his lifetime criminal activity by incapacitating him for

a longer time than if he received a lighter sentence.

How to choose? The sentencing guidelines do not

embody a coherent penal philosophy. United States v.

Blarek, 7 F. Supp. 2d 192, 203-04 (E.D.N.Y. 1998); Paul J.

Hofer & Mark H. Allenbaugh, “The Reason behind the

Rules: Finding and Using the Philosophy of the Federal

Sentencing Guidelines,” 40 Am. Crim. L. Rev. 19, 26-36

(2003). “The [Sentencing] Commission’s conclusion can

be summarized thus: since people disagree over the

aims of sentencing, it is best to have no rationale at all.”

Andrew von Hirsch, “Federal Sentencing Guidelines:

Do They Provide Principled Guidance?,” 27 Am. Crim. L.

Rev. 367, 371 (1989). In the case of diminished capacity

the guidelines have embraced a just-deserts theory;

but why it has done so—why it has in this instance elevated just-deserts considerations over the interest in

preventing recidivism—is not explained. In any event,

under the Booker regime a sentencing judge can adopt

his own penal philosophy. United States v. Corner, 598

F.3d 411, 416 (7th Cir. 2010) (en banc); United States v.

Herrera-Zuniga, 571 F.3d 568, 585 (6th Cir. 2009). And so

he can disregard the guidelines’ classification of diminished capacity as a mitigating factor, regard it as an

aggravating factor, or regard it as a wash.
No. 10-3097 5

The defendant argues that the district judge ignored

the issue of diminished capacity. In response to a

harangue by defense counsel and a detailed response to

it by the prosecutor, all the judge said was that “the

Court was struck with Mr. Garthus’ somewhat

troubled upbringing. There are many persons in our

society who have struggles . . . . Certainly the Court

takes note that there may be issues which have not

been properly addressed with regards to Mr. Garthus.

The Court is aware of his physical ailments . . . . [Defense

counsel is] convinced that Mr. Garthus with the proper

treatment will not reoffend . . . but the Court does not

share it. I don’t think there is any guarantee that

anyone can give that this urge which Mr. Garthus has

will not reemerge once he is given the opportunity to do

so . . . . The Court believe[s] that the Guidelines are reasonable under the circumstances. And the Court can find

no justification to depart from the recommended guidelines.” (The judge’s mention of “physical ailments” was

in reference to a different mitigation argument made

by defense counsel.)

Ordinarily a sentencing judge’s failure to address the

defendant’s principal argument for lenience would be a

reversible error. United States v. Villegas-Miranda, 579

F.3d 798, 801-02 (7th Cir. 2009); United States v.

Cunningham, supra, 429 F.3d at 679; United States v.

Olhovsky, 562 F.3d 530, 547, 552 (3d Cir. 2009); see

generally Rita v. United States, 551 U.S. 338, 356-57

(2007). But diminished capacity was not argued by

defense counsel at the sentencing hearing; the term was

not even mentioned, though the defendant’s cognitive
6 No. 10-3097

and psychiatric deficiencies were; and it is unsubstantiated.

The defendant suffers from attention-deficit disorder/

hyperactivity disorder, dyslexia, depression, and anxiety.

He also, according to one of the defense experts, suffers

from “chronic and persistent intellectual or cognitive

limitations.” He has an IQ of 83. Mean IQ is of course 100,

and the standard deviation is 15. This means that twothirds of the population have an IQ between 85 and 115,

and 16.67 percent (one-half of one-third) have an IQ

under 85. A person with an IQ of 83 is not bright, though

he is not intellectually disabled either. But neither

defense expert, nor defense counsel in either her sentencing memorandum or her lengthy remarks at the

sentencing hearing, mentioned any evidence that the

defendant’s mental condition had impaired his ability

either to have appreciated the wrongfulness of what he

was doing or to have refrained from doing it. The experts

opined that the defendant’s cognitive and psychiatric

problems might have contributed to his pedophilia, for

example by making him too shy to form a sexual relationship with an adult—although it was never explained why

that would generate a desire for child pornography rather

than adult pornography. But they didn’t say those problems had impaired his understanding of the wrongfulness of his behavior or made it more difficult for him

than for a person without his cognitive and psychiatric

problems to control his desire to collect illegal pornographic images.

At the sentencing hearing, where as we said no one

mentioned “diminished capacity,” defense counsel went
No. 10-3097 7

off in other directions, some distinctly unpromising, as

when she repeatedly referred to her client as being the

“victim.” At one point she called him “a victim in the

most extreme sense.” As a child he had been beaten

and called stupid by his father, and his mental problems

had never been treated or even diagnosed before his

arrest. He also has a heart condition. But he has never

been sexually abused and his “victimization” is hardly

comparable to that of the children in the pornography

that he downloaded or of the girl whom he had molested.

Relying mainly on the psychiatric expert’s report (the

other expert was a psychologist), defense counsel further

argued that her client, despite his molestation of a girl,

was not a “predator,” defined by the lawyer as one who

commits “hands-on child abuse or some sort of actual

contact.” She said that he is shy, and she pointed out that

his victim had been a relative, and she argued that he

would never approach a girl who was not a relative.

She noted that the psychiatrist had termed the defendant

“a low risk for breaking the law in the future” because

he showed “good judgment” during the interview by the

psychiatrist and expressed empathy for the “plight” of the

children whose images he had collected. These are

gossamer-thin grounds for a prediction about his future

sexual behavior. The lawyer didn’t mention the psychiatrist’s further statement that the defendant’s “pedophilic

fantasies are chronic and not likely to change over time,

even with continued therapy.” Nor did she mention that

almost the entire emphasis of his report, so far as the

likelihood of recidivism was concerned, was that the

defendant was “not likely to act out [his pedophilic]
8 No. 10-3097

fantasies by sexually approaching underage females.” So

just as in United States v. Coopman, 602 F.3d 814, 818 (7th

Cir. 2010), the expert “undermined the relevance of

his testimony” by focusing exclusively on the likelihood

that a child-pornography offender would commit a

“hands-on” offense and ignoring the likelihood that he

would commit future child-pornography offenses.

At the sentencing hearing defense counsel’s main

argument was that the defendant was unlikely to

commit further sex crimes if released after 180 months,

when he would be almost 60 years old. (Actually, if

sentenced to 180 months, he would be released after 157

months—a little over 13 years, not 15—if he behaved

himself in prison. See 18 U.S.C. § 3624(b); Barber v.

Thomas, 130 S. Ct. 2499, 2502-03 (2010).) That’s a different

argument from diminished capacity, and indeed, as

we said earlier, in tension with it and unsubstantiated

to boot.

The judge was unpersuaded that the defendant

would forgo criminal activity after release from prison,

and given the absence of contrary evidence he was not

required to do more than register his disagreement. That

the defendant is shy and his one “hands-on” victim a

relative and that he exhibited “good judgment” and

“empathy” in his interview by the psychiatrist do not

ensure that he won’t find another “hands-on” victim

when he is released from prison, or resume collecting

and disseminating child pornography.

We need evidence-driven law just as we need evidencedriven medicine. Statistical analysis of sex crimes has
No. 10-3097 9

shown that the best predictor of recidivism is not deportment at an interview but sexual interest in children. R.

Karl Hanson, Kelley E. Morton & Andrew J.R. Harris,

“Sexual Offender Recidivism Risk: What We Know and

What We Need to Know,” 989 Annals of the N.Y. Academy of

Sciences 154, 157 (2003) (tab. 1). Some studies show a

high rate of recidivism among pedophilic sex offenders

generally, ranging from 10 percent to 50 percent. Ryan

C.W. Hall & Richard C.W. Hall, “A Profile of Pedophilia:

Definition, Characteristics of Offenders, Recidivism,

Treatment Outcomes, and Forensic Issues,” 82 Mayo Clinic

Proceedings 457, 467 (2007). Another study found that only

6.8 percent of consumers of child pornography had been

charged with a new child-pornography offense within

4 years but that the percentage rose to 9.5 percent

within 6 years. Angela W. Eke, Michael C. Seto & Jennette

Williams, “Examining the Criminal History and Future

Offending of Child Pornography Offenders: An Extended

Prospective Follow-up Study,” Law & Human Behavior,

Nov. 19, 2010 (tab. 1), www.springerlink.com/content/

h4616862621x8616/ (visited June 23, 2011).

It’s a mistake to lump together different types of sex

offender. Lisa L. Sample & Timothy M. Bray, “Are Sex

Offenders Different? An Examination of Rearrest Patterns,” 17 Crim. Justice Policy Rev. 83, 93-97 (2006).

This defendant’s characteristics suggest that he is more

dangerous than the average consumer of child pornography. A pedophilic sex offender who has committed both

a child-pornography offense and a hands-on sex crime

is more likely to commit a future crime, including

another hands-on offense, than a defendant who has
10 No. 10-3097

committed only a child-pornography offense. Drew A.

Kingston et al., “Pornography Use and Sexual Aggression:

The Impact of Frequency and Type of Pornography Use

on Recidivism Among Sexual Offenders,” 34 Aggressive

Behavior 1, 9 (2008); Michael C. Seto & Angela W. Eke,

“The Criminal Histories and Later Offending of Child

Pornography Offenders,” 17 Sexual Abuse 201, 207

(2005) (tab. 3). The sadistic nature of much of the child

pornography consumed by the defendant is another

reason to worry about his being on the loose.

The psychiatrist mentioned none of the relevant scientific

literature in assessing the risk of recidivism, see United

States v. McIlrath, 512 F.3d 421, 424 (7th Cir. 2008), and

defense counsel did not suggest that the defendant

might be civilly committed, as a continuing menace to

society, after completion of his prison term.

The judge’s sentencing remarks were cryptic. But the

tension we noted earlier between diminished capacity as

a mitigating and as an aggravating factor in sentencing

makes it difficult for a judge to do more than this judge

did, which is to choose. It was an unavoidable choice

between incommensurables. United States v. Gammicchia,

498 F.3d 467, 469 (7th Cir. 2007). He made clear that he

was more concerned with the risk of the defendant’s

repeating his crimes when released from prison than

with the defendant’s “issues,” which is to say the arguments pressed by defense counsel for lenience.

The judge wanted a “guarantee”; that is, he wanted

to minimize the risk of recidivism. He was entitled to

put incapacitation and specific deterrence ahead of

just deserts.
No. 10-3097 11

“The more obvious the reasons for the sentence, the less

the need to announce them.” United States v. Middagh, 594

F.3d 1291, 1296 (10th Cir. 2010); see also Rita v. United

States, supra, 551 U.S. at 356. Defense counsel presented

scanty evidence and feeble arguments that the defendant would be harmless when released from prison.

There wasn’t much more for the judge to say in the face

of so one-sided a record.

The defendant’s final argument is that the provisions

of the sentencing guidelines relating to sexual offenses

are empirically unsupported, vindictive, and excessively

harsh. E.g., United States v. Grober, 624 F.3d 592, 603-09

(3d Cir. 2010); United States v. Dorvee, 616 F.3d 174, 184-

88 (2d Cir. 2010); Troy Stabenow, “Deconstructing the

Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines” (2009),

www.fd.org/pdf_lib/child%20porn%20july%20revision.pdf

(visited June 23, 2011). The argument is more properly

addressed to the Sentencing Commission, or to Congress,

which has greatly influenced the child-pornography

guidelines, United States v. McNerney, 636 F.3d 772, 775-78

(6th Cir. 2011), than to an individual district judge in a

sentencing hearing. See United States v. Pape, 601 F.3d 743,

748-49 (7th Cir. 2010); United States v. Aguilar-Huerta, 576

F.3d 365, 367-68 (7th Cir. 2009); United States v. LopezReyes, 589 F.3d 667, 671 (3d Cir. 2009). A sentencing

judge is not required to “delve into the history of a guideline” in order to satisfy himself that “the process that

produced it was adequate”; “sentencing hearings [would]

become unmanageable, as the focus shifted from the

defendant’s conduct to the ‘legislative’ history of the
12 No. 10-3097

guidelines.” United States v. Aguilar-Huerta, supra, 576

F.3d at 368. Judge Hibbler was entitled to limit his consideration to the particular applicable guidelines, which

he judged to be appropriate to the defendant’s conduct.

See United States v. Maulding, 627 F.3d 285, 287-88 (7th

Cir. 2010); United States v. Pape, supra, 601 F.3d at 748-49;

United States v. Huffstatler, 571 F.3d 620, 624 (7th Cir. 2009).

We don’t read his remark about the guidelines’ being

“reasonable” to mean that he was giving them presumptive force, which would be improper. Rita v. United States,

supra, 551 U.S. at 351. He is presumed to know the law

(a realistic presumption, given how large sentencing

looms in the work of district judges nowadays). He doubtless thought he was giving the defendant the right sentence, not a sentence that he disagreed with and was

imposing merely because it was consistent with a

guideline that could not be thought unreasonable in

general.

The gravity of the defendant’s offense should not be

denigrated. This case is like United States v. Goldberg, 491

F.3d 668, 669, 672 (7th Cir. 2007), where “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. [Over a period of some 18 months, Goldberg had

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.] The greater the
No. 10-3097 13

customer demand for child pornography, the more that

will be produced . . . . 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.” Defense

counsel could not have picked a less auspicious vehicle

for mounting a broad assault on the guideline provisions

relating to child pornography.

AFFIRMED.

7-14-11