1

The Honorable Lawrence L. Piersol, United States District Judge for the

District of South Dakota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-3729

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United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the Western

v. * District of Arkansas.

*

Orville Sheridan Toothman, *

*

Appellant. *

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 Submitted: June 11, 2008

 Filed: October 3, 2008

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Before LOKEN, Chief Judge, COLLOTON, Circuit Judge, and PIERSOL1

, District

Judge.

_____________

PIERSOL, District Judge.
2

The Honorable Jimm Larry Hendren, Chief Judge of the United States District

Court for the Western District of Arkansas.

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Defendant, Orville Sheridan Toothman, entered a plea of guilty to one count

of knowing receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2).

Toothman was sentenced by the district court2

 at the low end of the sentencing

guidelines range to a term of 97 months of imprisonment. Toothman now appeals

from the denial of his request for the statutory mandatory minimum sentence of 60

months of imprisonment. We affirm.

I. Background

After Toothman took his computer for repairs at a Best Buy store in northwest

Arkansas, a computer technician discovered child pornography on the hard drive and

reported this discovery to the police. Toothman was charged with five counts of

knowing receipt of child pornography and subsequently pleaded guilty to one of the

counts. The presentence report calculated the sentencing guidelines range at 97 to 121

months. Neither the United States nor Toothman disputed the calculated advisory

sentencing guidelines range. 

In his presentencing memorandum, at the sentencing hearing, and on appeal,

Plaintiff has sought a sentence of 60 months, the mandatory minimum prison

sentence for the offense. Toothman supported his request for the lesser sentence with

evidence of his medical condition which included being completely blind in one eye

and legally blind in the other eye. Toothman, at age 55, also suffers from

hypertension, high blood pressure, diabetes and low blood sugar. 

Toothman’s treating ophthalmologist testified at the sentencing hearing

regarding Toothman’s deteriorating vision. Toothman suffers from a rare congenital
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Toothman reports in his brief that the district court did not look through the

special eyeglasses prepared by Toothman’s treating ophthalmologist for the purpose

of demonstrating Toothman’s severely diminished vision. We note that the district

court explained that he did not look through the special eyeglasses simply because he

did not believe there was any question that Toothman had seriously impaired vision.

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condition, juvenile retinoskesis, which led to the complete loss of his vision in his

right eye. Toothman has required cataract and multiple laser surgeries in his left eye.

At the time of sentencing, Toothman had a twenty-degree field of vision.3

Toothman’s treating ophthalmologist testified that at Toothman’s current rate of

decline in vision, Toothman will be blind in both eyes within three years. Toothman’s

treating ophthalmologist also testified that if the center part of Toothman’s retina

detached, there would be a window of only 72 hours in which a retina surgeon could

perform the appropriate emergency procedure to save the vision in Toothman’s left

eye. Toothman’s treating ophthalmologist opined that the Bureau of Prisons (BOP)

would be unable to timely provide the appropriate emergency procedure if such were

needed to save the vision in Toothman’s left eye. Toothman’s treating

ophthalmologist also opined that Toothman would be unable to defend himself in a

prison setting.

In response to Toothman’s assertions regarding the BOP’s inability to

accommodate his medical condition, the United States presented the written

declaration of Dr. Tecora Ballom. Dr. Ballom is a licensed Doctor of Osteopathy

employed as a Commander in the United States Public Health Service and assigned

to the BOP as the Regional Medical Director for the BOP’s South Central Region.

Prior to signing her declaration, Dr. Ballom had reviewed correspondence to the

district court and defense counsel’s summary of Toothman’s medical condition. Dr.

Ballom stated in her declaration that the BOP has six in-patient Medical Referral

Centers which are accredited by the Joint Commission on Accreditation for Health

Care Organizations (JCAHO). JCAHO sets the medical, surgical, and psychiatric
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standards for hospitals nationwide. Dr. Ballom further stated in her declaration that

all of the BOP’s non-medical institutions are accredited by JCAHO for ambulatory

care, and that in addition to medical resources available within the BOP’s institutions

the BOP has extensive access to medical resources in the communities in which the

institutions are located. Dr. Ballom opined that based upon her review of the materials

available to her, Toothman would likely be classified as a care level 3 inmate and

would be designated to a care level 3 facility. Dr. Ballom opined that such a facility

would be capable of providing appropriate care for Toothman’s medical conditions.

At Toothman’s sentencing the parties agreed that the 97 to 121 month advisory

guidelines range calculated by the United States Probation Officer was correct.

Toothman then requested and was denied a departure under USSG § 5H1.4 and USSG

§ 5K2.0 for an extraordinary physical impairment and extreme susceptibility to abuse

in prison. Toothman also requested and was denied a variance based on United States

v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and the discretionary

factors of 18 U.S.C. § 3553.

II. Discussion

This Court reviews a district court's sentence for reasonableness, applying an

abuse-of-discretion standard. United States v. Garcia, 512 F.3d 1004, 1006 (8th Cir.

2008) (citing Gall v. United States, __U.S. __, __, 128 S.Ct. 586, 597, 169 L.Ed.2d

445 (2007)). A sentence is deemed procedurally unreasonable if the district court,

inter alia, “treat[ed] the Guidelines as mandatory, fail[ed] to consider the § 3553(a)

factors, ... or fail[ed] to adequately explain the chosen sentence.” Gall, 128 S.Ct. at

597. A sentence within the Sentencing Guidelines range is accorded a presumption of

substantive reasonableness on appeal, although the sentencing court does not enjoy

the presumption's benefit when it determines the merits of the arguments by the

prosecution or the defense that a Guidelines sentence should not apply. Rita v. United
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States, __ U.S. __, __, 127 S.Ct. 2456, 2462, 168 L.Ed.2d 203 (2007). We examine

the “substantive reasonableness of the sentence” by considering “the totality of the

circumstances, including the extent of any variance from the Guidelines range,”Gall,

128 S.Ct. at 597, and the strength of the stated justification, while viewing the district

court's decision through a “deferential abuse-of-discretion” lens. Gall, 128 S.Ct. at

598, quoted in United States. v. Lehmann, 513 F.3d 805, 808 (8th Cir. 2008).

Toothman concedes there are no errors or irregularities concerning the

Guidelines calculations or the procedure followed by the district court in reaching

Toothman’s sentence. Toothman claims, however, that his sentence of 97 months is

not substantively reasonable in light of the totality of the circumstances of his case.

In making this claim Toothman relies upon factors including his blindness and other

medical conditions, his remorse, his vulnerability to attack in prison, and his history

of being a law-abiding family man who has played a positive role in the lives of

others. 

Toothman contends that the district court in his case at sentencing was

operating within a legal framework that has changed since the Supreme Court

handed down its decisions in Gall v. United States, __U.S. __, 128 S.Ct. 586,169

L.Ed.2d 445 (2007), and Kimbrough v. United States, __U.S. __, 128 S.Ct. 558, 169

L.Ed.2d 481 (2007). These decisions were handed down less than a month after

Toothman’s sentencing. Toothman, in support of his contention that his sentence was

not substantively reasonable, cites to United States. v. Pauley, 511 F.3d 468 (4th Cir.

2007), a case which was decided shortly after Gall and Kimbrough were handed

down. In the Pauley case a panel from the Fourth Circuit upheld as reasonable a 36-

month reduction in a sentence variance for a defendant convicted of possession of

child pornography. Although the Pauley case includes some facts relevant in

sentencing which are similar to those upon which Toothman relies in his argument

for a more lenient sentence, the existence of some factual similarities to a case in
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which a more lenient sentence was upheld does not render the sentence in

Toothman’s case substantively unreasonable. The panel in Pauley acknowledged, as

do we, the deference that must be given to a district court’s sentencing decision

“[e]ven if we would have reached a different sentencing result on our own.” Id. at 474.

Although the sentencing landscape may have changed since Gall and

Kimbrough were decided, Toothman has not raised any issue that would require

reversal based on the requirements of Gall and Kimbrough. When this Court engages

in a “deferential abuse-of-discretion” review of the sentence imposed in determining

substantive reasonableness under the Gall two-part systematic sentencing review we

recognize that the sentencing court’s “job is not to impose a ‘reasonable’ sentence.

Rather, a district court's mandate is to impose ‘a sentence sufficient, but not greater

than necessary, to comply with the purposes' of section 3553(a)(2). Reasonableness

is the appellate standard of review in judging whether a district court has

accomplished its task.” United States v. Huff, 514 F.3d 818, 820 (8th Cir. 2008)

(quoting United States v. Foreman, 436 F.3d 638, 644 n. 1 (6th Cir.2006)). 

The sentencing transcript in this case demonstrates that the district court

considered the factors in section 3553(a) to find as he characterized it “in this

particular case what sentence is adequate, but not excessive.” The sentencing

transcript in this case further demonstrates that the district court adequately “set

forth enough to satisfy the appellate court that he has considered the parties’

arguments and has a reasoned basis for exercising his own legal decisionmaking

authority.” Rita v. United States, __ U.S. __, __, 127 S.Ct. 2456, 2468, 168 L.Ed.2d

203 (2007). The district court thoroughly considered Toothman’s arguments and

evidence regarding his history and medical conditions and the impact of an advisory

guidelines sentence on Toothman’s medical conditions before determining that a

sentence at the bottom of the advisory guidelines range was appropriate in

consideration of all the section 3553(a) factors. The district court did not abuse its

discretion in making this determination. 
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Toothman also argues that a downward departure was warranted under the

sentencing guidelines because of an extraordinary physical impairment which would

leave him exceedingly vulnerable to possible victimization. See USSG § 5H1.4;

United States v. Long, 977 F.2d 1264, 1277 (8th Cir. 1992). However, a sentencing

court's discretionary decision not to depart downward is not generally reviewable on

appeal. Since Toothman does not allege that the district court had an unconstitutional

motive or mistakenly believed it lacked authority to grant the departure, we decline

to review the district court's denial of any departure. See United States v. Johnson,

517 F.3d 1020, 1023 (8th Cir. 2008); see also United States v. Rice, 332 F.3d 538, 540

(8th Cir. 2003).

III. Conclusion 

After reviewing all the circumstances of this case and the sentencing transcript,

we conclude that the district court did not abuse its discretion in denying Toothman’s

request for a downward variance. Accordingly, we affirm the judgment of the district

court.

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