In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-2499

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

JOHN B. BAKER,

Defendant-Appellee.

____________

Appeal from the United States District Court 

for the Central District of Illinois.

No. 04 CR 10053—Joe Billy McDade, Judge.

____________

ARGUED JANUARY 24, 2006—DECIDED APRIL 28, 2006

____________

Before RIPPLE, ROVNER and EVANS, Circuit Judges.

RIPPLE, Circuit Judge. On August 19, 2004, a grand jury

sitting in the Central District of Illinois returned a threecount indictment charging John Baker with two counts

of distribution of child pornography, see 18 U.S.C.

§ 2252A(a)(1), and one count of possession of child pornography, see id. § 2252A(5)(B). In compliance with a

plea agreement, Mr. Baker pleaded guilty to one count

of distributing child pornography in exchange for the

dismissal of the remaining counts. The district court sentenced Mr. Baker to 87 months’ imprisonment, a term below

the advisory guidelines range of 108 to 135 months. The
2 No. 05-2499

court also imposed a lifetime of supervised release. The

Government now appeals; it submits that the sentence imposed by the district court is unreasonably low. For

the reasons set forth in the following opinion, we affirm the

judgment of the district court.

I

BACKGROUND

A. Facts

On May 14, 2004, Mr. Baker entered a public online

chatroom called “gaymenteenboys.” Using the screen name,

“perocks01,” he conversed with “bradnh14,” who claimed

to be a fourteen-year-old boy; bradnh14 even posted a

picture of himself in his online profile. In actuality,

bradnh14, or Brad, was Detective James McLaughlin of the

Keene, New Hampshire Police Department, who

was posing as a child; the picture in the online profile

was of the detective as a young man.

Mr. Baker corresponded with Detective McLaughlin, as

bradnh14, for several months by email and online instant

messages, as well as by a letter sent through the mail.

During this time, Mr. Baker told Detective McLaughlin that

he had engaged in sexual activities with at least two thirteen-year-old children. He also sent the detective various

image files of young men: eight images were of young men

in various stages of undress; three images were of nude

prepubescent males engaged in explicit sexual acts.

Mr. Baker expected to receive pictures of Brad in return.

On August 4, 2004, Detective McLaughlin contacted the

FBI Office in Peoria, Illinois, and informed FBI agents of his

ongoing correspondence with Mr. Baker. The Central
No. 05-2499 3

Illinois Cybercrime Unit, a cooperative law enforcement

program involving federal and local prosecutors, local

police and the FBI, initiated an investigation and began

surveillance efforts. On the following day, members of the

Cybercrime Unit observed Mr. Baker entering Heartland

Community College in Normal, Illinois. From there,

Mr. Baker emailed four images of child pornography to

Detective McLaughlin. Contemporaneously, Mr. Baker

received online correspondence from Detective McLaughlin,

indicating that “Brad” had mailed a letter to Mr. Baker’s

former address in Bloomington, Illinois. Mr. Baker left the

college, followed by surveillance officers. He proceeded

directly to the specified address where he waited for the

postman to arrive. After the mail was delivered, Mr. Baker

returned home. A subsequent search of Mr. Baker’s residence by members of the Cybercrime Unit resulted in the

seizure of at least 300 images containing child pornography

from Mr. Baker’s computer and floppy disks in his possession. Some of the recovered images depicted sadistic abuse

of a minor.

B. District Court Proceedings

On August 19, 2004, Mr. Baker was indicted on two

counts of distribution of child pornography, see 18 U.S.C.

§ 2252A(a)(1), and one count of possession of child pornography, see id. § 2252A(5)(B). After entering a plea

agreement, Mr. Baker pleaded guilty to one count of

distributing child pornography; the remaining counts were

dismissed.

In calculating the advisory imprisonment range under the

November 2003 edition of the Sentencing Guidelines, the

Presentence Report began with a base offense level of 17. See
4 No. 05-2499

U.S.S.G. § 2G2.2(a). It added two levels for possession of

images of prepubescent minors under the age of 12, id.

§ 2G2.2(b)(1); five levels for the distribution of child pornography with the expectation of receiving child pornography

in return, id. § 2G2.2(b)(2)(B); four levels for images portraying sadistic and masochistic conduct, id. § 2G2.2(b)(3); two

levels for use of a computer to transmit, receive and distribute the pornography, id. § 2G2.2(b)(5); and four levels for

possession of between 300 and 600 images of child pornography, id. § 2G2.2(b)(6)(c). The total offense level, after a

three-level reduction for acceptance of responsibility, see id.

§ 3E1.1(b), was 31. Mr. Baker had no prior criminal record

and was assigned a criminal history category of I. The result

was an advisory guidelines range of 108 to 135 months’

imprisonment.

Mr. Baker did not object to the Presentence Report, but he

did file a sentencing memorandum requesting leniency. The

memorandum identifies several mitigating factors:

Mr. Baker’s complete cooperation with law enforcement; his

good academic record in high school; his college and church

attendance; the fact that his mother left the family while he

was an infant; his father’s itinerant lifestyle as a preacher;

and his lack of any criminal record. He also attached letters

from family, friends and past employers attesting to his

good character and employment history. In light of these

facts, Mr. Baker submitted that a sentence of 60 months’

imprisonment was appropriate under 18 U.S.C.

§ 3553(a)(2)(A),(B).

The sentencing hearing was held on April 3, 2005. At this

hearing, Mr. Baker called the Reverend Dr. Kent KingNobles, the minister and pastoral counselor at Mr. Baker’s

church, who testified that he did not believe Mr. Baker

was a danger to the community; he noted, however, that
No. 05-2499 5

Mr. Baker probably should not be placed “in a position

where he is working with children.” R.18 at 8. Mr. Baker

also called Cary Hendricks, the director of youth ministry at

Mr. Baker’s church. Hendricks testified, based on his

observation of Mr. Baker during his involvement with the

church’s youth ministry, that he did not consider Mr. Baker

to be a danger to society; he also noted that an investigation

at the church had not revealed any indication of inappropriate contact between Mr. Baker and the children under his

charge. Id. at 18-21. On the basis of this testimony, defense

counsel repeated his assertion that 60 months’ imprisonment, which constitutes the mandatory minimum sentence

under 18 U.S.C. § 2252A(b), would be sufficient to deter

future misconduct, particularly if combined with treatment,

a “lengthy supervised release period” and close monitoring.

Id. at 36.

In response, the Government submitted that none of the

proposed mitigating factors discussed in Mr. Baker’s

sentencing memorandum, assessed either “individually

or collectively, really takes this case out of the norm.” Id.

at 29. While the Government conceded that Mr. Baker’s

“good background,” religious upbringing, lack of drug or

alcohol addiction and solid educational and employment

history were “unusual in this courtroom,” it nevertheless

characterized these facts as merely “advantages” that

should have kept Mr. Baker from turning to crime. Id. at 30.

The district court began by remarking that this case

was “different in the sense that the defendant is not and

does not have the appearance of a dirty old man who hangs

out at playgrounds, preying on small children.” Id. at 38.

The court acknowledged Mr. Baker’s representation to

Detective McLaughlin that he had had sex with

two 13-year-old boys, but gave Mr. Baker “the benefit of a

doubt,” noting that Mr. Baker later recanted this version of
6 No. 05-2499

events and that there was no evidence that he was not

merely “puffing.” Id. at 40; but see id. at 41 (remarking that,

although there is no evidence that Mr. Baker has ever

molested a child, “perhaps he was moving in that direction”). Given Mr. Baker’s “crime free” life, and the fact

that “a term of imprisonment would probably mean more to

him and have a greater impact than on someone who had

previous experience being incarcerated,” the district court

ultimately concluded that a lesser term of imprisonment

was appropriate. Id.

Acknowledging the seriousness of the offense, but also

expressing concern that the low end of the advisory

range—108 months’ imprisonment—likely could not be

characterized as a sentence “no greater than necessary to

comply with purposes of sentencing,” 18 U.S.C. § 3553(a),

the district court imposed a sentence of 87 months’

imprisonment—21 months below the low end of the advisory guidelines range. The district court’s sole written

explanation of the sentence imposed reads:

There is no evidence in the record to indicate that the

defendant has acted out against any child. The sentence

of 87 months is sufficient, but not greater than necessary

to comply with sentencing purpose.

R.14. Mr. Baker’s time in prison will be followed by a

lifetime of supervised release unless the probation office

determines that supervision is no longer necessary.

II

DISCUSSION

On appeal, the Government contends that the 87-month

sentence imposed by the district court is unreasonable,

primarily because the district court failed to justify ade-
No. 05-2499 7

quately, in writing, its downward departure from the

advisory guidelines range. Specifically, according to the

Government, the district court identified in writing only the

lack of aggravating factors, see R.14 (concluding that “[t]here

is no evidence in the record to indicate that the defendant

has acted out against any child”), rather than the presence

of mitigating factors, as required under the Guidelines to

justify a departure from the advisory sentencing range. We

review the sentence imposed by the district court, and its

departure from the advisory sentencing range, for reasonableness in light of the factors specified in 18 U.S.C.

§ 3553(a). See United States v. Vaughn, 433 F.3d 917, 923-24

(7th Cir. 2006).

Post-Booker, a district court has significantly more freedom

than before Booker to fashion an appropriate sentence.

Nevertheless, the district court is required to calculate

properly the advisory sentencing range and to impose a

sentence which takes into consideration the sentencing

factors specified in 18 U.S.C. § 3553. Id. at 924. If the sentence falls within the advisory sentencing

range recommended by the Guidelines, it is entitled to a

rebuttable presumption of reasonableness, see United

States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005); if,

however, the district court chooses to depart from the

advisory Guidelines, it must offer adequate justification

for that departure, see Vaughn, 433 F.3d at 924. Although

there is no bright line standard for how much explication is

necessary to support a discretionary sentence that is significantly above or below the guidelines range, “the farther the

judge’s sentence departs from the guidelines sentence . . .

the more compelling the justification based on factors in

section 3553(a) that the judge must offer in order to enable

the court of appeals to assess the reasonableness of the
8 No. 05-2499

sentence imposed.” United States v. Dean, 414 F.3d 725, 729

(7th Cir. 2005).

Our task in the present case is not to decide whether 87

months’ imprisonment could be a reasonable sentence; our

function, as stipulated by the parties, is merely to assess

whether the district court’s choice of sentence was explained

adequately. See United States v. Castro-Juarez, 425 F.3d 430,

433 (7th Cir. 2005). The Government is correct to the extent

that the district court’s written statement, justifying the 87-

month sentence, was short and includes little discussion of

relevant § 3553(a) sentencing factors. See R.14. Nevertheless,

we never have held that our review of the district court’s

rationale, and ultimately the reasonableness of the sentence

it imposed, is limited to the reasoning set forth in a written

statement. In similar contexts, we have held that, so long as

the sentencing court provides an adequate rationale for its

decision, it is irrelevant whether that rationale is contained

in a written statement or, alternatively, was articulated

orally at the sentencing hearing. See United States v. Ortiz,

431 F.3d 1035, 1042-43 (7th Cir. 2005) (holding that, in the

course of determining whether conduct supporting an

enhanced sentence was sufficiently related to the offense of

conviction, we review both the district court’s written

statement of reasons and its statements at sentencing to

determine the sufficiency of its rationale); United States v.

Arroyo, 406 F.3d 881, 889 (7th Cir. 2005) (same). We adopt

that rule in this context, as well, and review for thoroughness the district court’s reasoning for sentencing Mr. Baker

below the advisory guidelines range as contained in its

written statement and as articulated during the sentencing

hearings.

The district court’s rationale at Mr. Baker’s sentencing

hearing for departing from the advisory guidelines range is
No. 05-2499 9

1 We recently recognized that, while the PROTECT Act does not

make the Sentencing Guidelines binding on district courts in

child pornography cases, district courts nevertheless are required

to give respectful attention to Congress’ manifest intent that child

crimes, such as the offense involved in the present case, be

punished with the severity they deserve. See United States v.

Grigg, 442 F.3d 560 (7th Cir. 2006). The district court’s statements

at the sentencing hearing demonstrate respect for these concerns.

The court noted:

The Court must protect young children as best it can because

they are really not in a positioned [sic] to protect themselves

because of their immaturity, lack of experience, and common

sense.

(continued...)

adequate and premised properly on the factors specified in

§ 3553(a). It also is sufficient to enable this court to “assess

the reasonableness of the sentence imposed.” Dean, 414 F.3d

at 729. Specifically, at this hearing, the district court paid

close attention to Mr. Baker’s lack of a criminal history, his

relatively young age, his religious background and his

history of both employment and higher education. The

court’s consideration of these facts, in turn, coincides with

the sentencing factors specified in § 3553(a). See 18 U.S.C.

§ 3553(a)(1) (directing sentencing courts to consider “the

nature and circumstances of the offense and the history and

characteristics of the defendant”). Also significant is the

district court’s finding that a prison term would mean more

to Mr. Baker than to a defendant who previously had been

imprisoned. Consideration of this factor is consistent with

§ 3553’s directive that the sentence reflect the need for “just

punishment,” id. § 3553(a)(2)(A), and “adequate deterrence,” id. § 3553(a)(2)(B). Moreover, recognizing the

seriousness of the offense1

 committed by Mr. Baker, the
10 No. 05-2499

(...continued)

And there are children out there who are very aggressive

sexually, who are shockingly advanced in their sexuality,

and—but still they need protection from their own foolishness. The question here is how much incarceration is necessary to serve all of the purposes of sentencing and one of the

most difficult decisions by a judge is making

that determination.

As [the prosecutor] observed, the Sentencing Guidelines

affords some guidance to the Court. They represent the

considered judgment of Congress based upon the recommendations of scholars and others who have studied the situation, suggesting that a range of months should be a typical

sentence imposed by this Court and any Court dealing with

a similar situation. And that range of 108 to 135 months

equates to approximately nine to 11 years. And the low end

would be 108 months or nine years. The question in my mind

then is nine years a sentence no greater than necessary to

comply with the purposes of sentencing? One would like to

impose a sentence that would not imprison the defendant for

more than one day more than what is necessary.

R.18 at 38-39. Given the court’s consideration of congressional

goals in making unlawful the possession and distribution of child

pornography, as well as the court’s assessment of the facts of Mr.

Baker’s offense and his background and characteristics, we

conclude that the court’s discussion and the ultimate sentence

imposed adequately reflects the seriousness of Mr. Baker’s

offenses, as required by Grigg.

district court imposed special conditions designed to reduce

the risk of Mr. Baker becoming a repeat offender, including

a life-long term of supervised release, restrictions on future

possession of child pornography and a prohibition on

unsupervised contact with minors. This extended discussion, touching upon various significant § 3553(a) factors,
No. 05-2499 11

was sufficiently proportional to the district court’s deviation

from the Guidelines to satisfy the requirements of Dean.

Conclusion

Because the district court properly considered and applied

the sentencing factors specified in 18 U.S.C. § 3553(a), as

well as adequately explained its rationale for departing from

the advisory sentencing range, Mr. Baker’s 87-month

sentence cannot be considered unreasonable. Accordingly,

we must affirm the judgment of the district court.

AFFIRMED

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-28-06