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# United States Court of Appeals For the Seventh Circuit

No. 18-1310

U NI TE D S TAT E S OF A ME RI CA , Plaintiff-Appellee ,

v.

S COTT B. G RI F F I TH

, Defendant-Appellant.

Appeal from the United States District Court for the

Central District of Illinois. No. 4:16-cr-40010-SLD-1 — Sara Darrow, Judge.

A RGUE D N OV E MB E R 7, 2018

— D E CID E D J ANUAR Y 22, 2019

Before R OVN E R

, S YKE S , and B ARRE TT

, Circuit Judges

. R OVN E R , Ci rcuit Judge. Scott B

. Griffith pled guilty to a three-count indictment that charged him with receiving, distributing, and possessing child p ornography

. The district court sentenced him to 240 months’ imprisonment on each count, to run concurrently , a s w ell as a fifteen-year period of supervised release. On appeal, he asserts that the d i strict court2 No. 18-1310
committed procedural error in calculating the guidelines range, and that his resulting sentence i s substantiv e ly unreasonable. W

e affirm. I. Griffith w as charged with: (1) receiving four digital images
o f c h i l d p o r n o g r a p h y , i n v i o l a t i o n o f 1 8 U

. S

. C

. § § 2 2 5 2 A(a )(2 )(A) an d 2252 A(b)(1 ); (2 ) d i str ibutin g th r ee d i g i t a l images of child p ornography (different than those receiv ed), in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(b)(1); and (3) possessing visu a l depictions of child pornography in addition to those described in the receipt a nd d istribution counts, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2). All tolled, Griffith’s crim es included 477 photogr a phs and elev en videos of unspecified length. All cou nts
w ere a lleged to h av e oc c u r r ed during a three-month period
near the e nd of 2015, and all inv o lv ed the use of T witter accounts. Each time T

witter detected child por nography on Griffith’s accou nt, the company closed the account and reported the inappropriate activity

. Griffith created more than tw enty-fiv e T

witter accounts during that three-month period in a n attempt to thw a rt the company’s efforts, directing his follow ers from one account to the next. Prior to committing these c rimes, Griffith, who w as fiftytw o y ears old at the time of his arrest, had amassed enough of

a criminal history t o land him in C a te gor y V , o nly one l ev el below the t o p of the scale. At the age of tw enty , he had sexually abused a child under the age of thirteen, a conviction that w as t o o o ld to be counte d f or c riminal history purposes. The v ast majority of his remaining criminal history w asNo. 18-1310 3 composed of driving o ffen ses an d theft s, so me min or and some
more serious. Additionally , tw o w omen h ad sought and receiv ed orders of protection against Griffith after he threatened them. His criminal record prior to this offense spanned nearly thirty years and a dozen o f the previous offenses w ere either too old or too minor to be included in the calculation of his criminal history

. The Presentence Inv estigation Report (“PSR”) 1 noted that the base offense l ev el for the three grouped counts w a s 22, citing U.S.S.G. § 2G2.2. An analysis of specific offense characteristics added 18 l evels for a total of 4 0. In p articular , the PSR added tw o lev els under section 2G 2

. 2 ( b)(2) because the

ma te r i a l inv o l ved a p repubescent minor

. Gr i ffi th so l i ci ted chi l d pornography o n his T

witter pages in exchange for access to his
own collection, leading to a fiv e-lev el increase under section 2G2.2(b)(3)(b), for distrib u ting the pictures in exchange for
non- pe cuniary

, v aluable consideration, a transaction someti mes called a “ peer-to-peer exchange. ” F o ur l e vel s wer e a d d ed under section 2G2.2(b)(4)(A) and (B) for material that depicted violence and sexual abuse o r exploitation of a toddler

. The use
o f a co mp uter co ntr ibuted tw o lev els under section 2 G2

. 2 (b)(6 ). Finally , each of the elev en v ideos w as treated as equiv alent t o
sev enty-fiv e images which, when added to the 477 photographs, pushed the total images ov er 600 and added five lev els

1 There are two versions of the PSR in the record, an original and a revised version. The revised version includes an addendum that details the defendan t ’ s o bj ections to the first PSR and the government’s response, as well as some other revisions and recommendations. For the purpose of calculating th e o ffe n se level and criminal history category, the PSRs are essentially the same. We will note any differences when relevant.4 No. 18-1310
under section 2G2.2(b)(7)(D), f or an adjusted o ffense lev el of 40. After deducting three lev els for acceptance of responsibility , the PSR set the total offense lev el at 37. B oth v ersions of the PSR n oted that the guidelines range for a total offense lev el of 37 and a criminal history Category V is 324 t o 405 m onths’ imprisonment. Both PSRs took the position that Griffith’s prior conviction for sexual abuse qualified hi m for enhanc ed mandatory minimums under 18 U.S.C. § 2252A(b)(1), noting that the enha nced terms for Counts I and II w ere fifteen t o forty y ears. Count III carried a minimum of te n years and a maximum of tw enty y ears, a ssuming that the enhanced penalty applied. The revised PSR incorrec tly stated that, without the enhanced mandatory minimums, the guidelines range w ould be 240 months. N either party noticed that error until the sentencing hearing, as we discuss below

. Griffith filed a number of objections to the PSR in the district court, l argely f a lling into three categories. First, he objected to the application of the “specific offense characteristics” provisions that added eighteen lev els to the base offense lev el. He contended that the additional lev els assessed against him w ere based on “arbitrary , unreasonable and unw arranted sentencing factors which are inherent in the offense of conviction, and p a te ntly inconsistent with the p urposes of Title 18 U.S.C. Section 3553(a).” R. 18 at 1–2. He complained that the

“ r ote application” of those provisions “yields a d r aconian guideline sentenc ing r a nge of 324–405 months (27 to 33.75 y ears),” a result he characterized as “ w holly incompatible” with the section 3553(a) factors and “offensiv e to the ends of justice.” R. 18, at 2. The crux o f Griffith’s objection w as thatNo. 18-1310 5
gu ideline 2G2.2 is fundamentally flaw ed and that a belowguidelines sentence w as w arranted: In sum, Mr

. Gr if fith’s objections to the specific offens e characteristics being a ssessed against him
are th at the child pornography guidelines, as applied to hi m on the facts of this case, are excessiv ely harsh and fundamentally incompatib le with the §3553(a) sentencing factors.

... Accordingly , Mr

. Griffith asks [for] a substantial downw a rd v ariance from the guidelines at the time of sentencing. R. 1 8 at 6-7. Griffith’s second major objection w as that the court should not apply enhanced mandatory minimum terms against him based on his prior criminal sexual abuse conviction under 1 8 U.S. C

. § 2 2 52A(b)(1). The district court agreed with this pos ition, finding that the enhanced mandatory minimum terms did not a pply to him, and that issue is n ot a part of this appeal. Finally , he maintaine d that Criminal History Category V over-represented his criminal history

. At the sentencing hearing, after r esolving the enhanced mandatory minimum issue in Griffith’s fav or , the d istrict court noted th at the statutory range for Counts I and II w a s fiv e t o tw enty y ears, and zero to tw enty years for Count III. The court then found that the total offense lev e l w a s 37, the Criminal History w as Category V , and the guidelines range (which had been c alculated to be 324 to 405 months) w o uld become 240 months because of the statutory cap for each count. The court asked if the parties concurred “with the Court’s recitation as t o the applicable statutory and guideline provisions,” and b oth6 No. 18-1310 parties replied, “Y

es.” R. 37, S e nt. T

r
. at 19. The court then adopted the revised PSR and its addendum. After the parties presente d argument regarding Griffith’s objections and the section 3553(a) factors, the gov ernment
a sked the court t o clarify the guidelines range. The g o ve rnment pointed out that because Griffith pled guilty to three separate offenses inv o l ving discrete materials, his sentences could run consecutiv ely

, me a ning there w as a sixty-year statutory cap, not a tw enty-year maximum. After asking the p r oba ti o n o fficer to check the calculation, the court announced: Y es. The gist is if I r an it consecutiv ely , I could impose a guideline range sentence which w o uld be the 324 to 405 months. In other w ords, the statutory cap here w o uld be 6 0 y ears—...—if run consecutiv ely

. I understand that.

... Do y ou w ant me to refine that? I mean, I think it w as—I guess all I’ll say is I think i t w a s an error for me t o say earlier that the guideline r ange becom e s the statutory cap because they could be r un consecutiv ely

. ... I s that an a ccurate assessment? R. 37, S ent. T

r
. at 37-38. Defense counsel responded, “ Y es.” Id

. After the defendant made a statement, the court addressed the section 3553(a) factors. In the midst of a thorough discussion of those factors, the cour t e xha ustively addressed Griffith’s arguments regarding “the fairness of the s e guidelines.” R. 37, Sent. T

r
. a t 4 8

. C a tering her analysis to the facts of Griffith’s offenses, the j udge found appropriate the tw o-lev el enhan cement fo r m a ter i a l d ep i c tin g p r ep ubescent children, the fiv e -lev el addition for peer-to-peer exchange of material, andNo. 18-1310 7
the four-lev el bump for the violence of the images. The court noted that it discounted the tw o-lev el enhancement for use of

a computer in nearly all cases because it w as part o f e v e ry offens e a nd so “not applying the tw o -lev el enhancement in terms of a v a r iance w ould be appropriate for use of [a] computer.” R. 37, Sent. T

r
. at 49. On the nu mb e r of images, the court noted that i t lacked information regarding the length of the videos o r what w as depicted on them, making it difficult t o compute a final number

. She declined t o use the “boilerplate” computation of 75 images pe r v ideo, finding that a four-lev el enhancement for the number of im a ges w ould be more appropriate than the fiv e lev els indicated by the guidelines for 477 photographs and eleven videos: I think that the—so, the v a riance, if y ou w ant to call it that, for my recalculated guideline s w ould be 37. I think that w ould be the appr opriate reflection of the seriousness of y our conduct here. R. 37, Sent. T

r
. a t 50. T he c ou r t then found that Criminal History Category V appropriately r eflected Griffith’s criminal conduct ov er a lengthy span of time. Be f ore announcing the sentence, the cou r t remarked that Griffith w as not the typical child p ornography defendant because most w ere lev el 3 4 with

a Criminal His tory Category I but Griffith w as “squarely” a Category V

. R. 3 7, Sent. T

r
. at 57. Afte r defense counsel confirmed that the court h ad a ddressed all of Griffith’s arguments in mitigation, the judge sentenced Griffith to 240 months’ imprisonment on each count, to run concurrently , as
w ell as a term of supervised release. Griffith appeals.8 No. 18-1310
II. On appeal, Griffith contends that the district court committed procedural error when it failed t o correctly ca lc ulate the guidelines sentence before imposing the 240-month sentence. He also argues that the court i mposed a substantively u nr e a sonable sentence. W

e apply the abuse of discretion standard in reviewing whether sentencing d ecisions a re reasonable. Gall v
. United States , 552 U.S. 38, 46 (2007); United States v
. Smith , 860 F .3d 508, 514 (7th Cir

. 2017). W e first must ens u re that the district court committed no significant p rocedural error , such

a s incorrectly calculating the guidelines range, failing to consider the section 3553(a) factors, selecting a sentence based
on clearly erroneous facts, or failing to explain adequately the chosen sentence. Gall , 5 52 U.S. a t 51; Smith , 860 F .3d at 514. Whether the district court committed procedural e r r or is a question of law that w e r eview de novo
. S mith , 860 F .3d at 514; United States v . Mendoza , 510 F .3d 749, 754 (7th Cir. 2007). In raising his procedural challenge, Griffith first a sser t s th a t the court did not correctly calculate the guidelines range when it initially adopted the PSR addendum’s erroneous guidelines calculation. H e also maintains that the court failed to rule on a final guidelines r a nge before pronouncing sentence. These objections do not hold up to a fair r eading of the se nte ncing transcript. After adopting the revis e d PSR and its addendum during the sentencing hearing, the court became aw are that the docu me nt contained an error
. The r evised PSR calculated the guidelines range a s 324 to 405 months if the enhanced mandatory minimum applied, and as 240 months if that statutoryNo. 18-1310 9
enhancement did not apply

. Prior to the hearing, neither party noticed that the statutory cap w as not limited to 240 months. Griffith had p led guilty to three counts, each with its o wn cap of tw e nty y ears (or 240 months), and those terms could be imposed consecutiv ely for a total of sixty y ears. As w e noted abov e, the g ov ernment alerted the judge to this error after she rejected the statutory enhancement and o therwise adopted the P S R. The court agreed with the gov ernment’s p roposed correction and then found that the statutory maximum w as sixty y ears. As the judge c la r ified a t the sentencing hearing, that meant that the guidelines r ange w as not capped a t tw enty y ears but w as in fact 324 to 405 months, which w a s w ell within the sixty-y ear cap. Both parties expressly agreed that this w as
a n accurate assessment of the guidelines. In other w ords, the
c ourt w as no longer adopting the PSR in its entirety b ut w a s amending its earlier ruling to account for the corrected statutory cap of sixty y ears, m a king the correct guidelines range 324 to 405 months. An argument that the court erred in initially adopting the erroneous PSR is a non-starter

. The court recognized and corr e c te d that error before announcing the sentence. Any initial misstep w as harmless because i t did not affect the court’s choice of sentence. United States v
. Morris , 775 F .3d 882, 885 (7th Cir. 2015). Griffith next claims that the court re-analyzed the fiv e specific offense characteristics for section 2G2.2 but nev er recalc ula te d the guidelines to reflect that new analysis. He is referring, o f course, to the district court’s discussion of a downw ard “v ariance” equiv alent to tw o le v e ls for use of a computer and one lev el f or the total number o f images. In context, how ev er

, i t is clear that the court w as not re-analyzing10 No. 18-1310
the specific offense characteristics in o rder t o correct the guidelines calculation but rather w as expressing disagreement with the properly calculated guidelines sentence. After United States v
. Booker, 543 U.S. 220 (2005), a sentencing judge has the discretion to dis a gree with a p articular provision of the guidelines and to impose a non-guidelines sente nce that, in his or her judgment, is more consistent with the statutory sente ncing factors set out in section 3553(a). Kimbrough v
. United States , 5 5 2 U.S. 85 (2007); S mith , 860 F .3d a t 517; United S tates v
. Rosales , 813 F

. 3d 634, 637 (7th Cir

. 2016). In the context of addressing the section 3553(a) factors, the court here explained th at it routinely v aried downw ard the equiv a lent of tw o lev els because child pornography o ffenses virtually alw ays inv olv e the use of a computer , making the application
o f section 2G2.2(b)(6) inappropriate, in the court’s o p ini o n
. The court similarly disagreed with the “boilerplate” addition of
sev enty-fiv e images for each video, allowing for a downw ard

v ariance equiv alent to one lev el. The court then stated that “the

v ariance, if y ou w a nt to call i t that, for my recalculated guidelines w ould be 37.” R. 37, Sent. T r
. at 50. That mention of lev el 3 7 w as likely a misstatement because it did not take into account that the court had also adopted the PSR recommendation t o allow a three-lev el reduction for a cceptance of r esponsibility , and so the v ariance w as analogous to level 34, not level 37. The missta te m ent had no effect on the sentence, how ev er , because the court tr eated the v ariance as equiv alent t o alev el 34 sentence, not a level 37 sentence. In expressing i ts policy disagreement with the application of certain s pe c ific offense characteristics, the court simply analogized the v ariance to reductions in particular specificNo. 18-1310 11
offense characteristic lev els. The court made this a dju s tm e nt under section 3553 ( a), and had no occasion to recalculate the final guidelines lev el. In Criminal H istory Category V , the analogous lev el 34 sentence y i elds a guidelines range of 2 35 t o 293 months. The final sentence of 240 months is on the low end of a lev el 34 sentence and a full 84 months below the bottom of the properly calculated guidelines range. I f, as Griffith argues, the court had mistakenly failed t o ac cou nt for acceptance of responsibility when deciding how much to v ary , the sentence
w ould hav e been significantly higher

. W e ha v e no doubt that the court w as not correcting the guidelines calculation but w as simply explaining a downw ard v ariance under section 3553(a) from the p roperly calc ulated range by w ay of analogy to the guidelines. W e emphasize that it w as n ot necessary for the c ou r t to analogize to the guidelines when explaining the downw ard

v ariance. United States v
. Kuczora, 910 F .3d 904, 9 0 8 (7th Cir

. 2018) (“the sentencing court need not frame i ts explanation of

a sentence in terms of a departure from the gu idelines range, but may instead focus on the appropriateness of the s entence under § 3553.”) (quoting United States v
. Courtland, 6 42 F .3d 545, 550 (7th Cir

. 2011)). A court need o nly explain why a sentence is appr opriate under the statutory criteria. Kuczora, 910 F .3d at 908. So l ong as a court uses the p roperly calculated guidelines range as a starting point, it may explain a decision to v ary from the range with reference to the section 3553(a) factors alone. Kuczora, 910 F .3d at 908. W e also note that the court h ad not found any error in the PSR’s c a l cul a ti o n o f the gui d el ines (other than the statutory cap issue w e note d e a r lier) and had no reason to recalculate the12 No. 18-1310 guidelines. The court’s Statement of Reasons expla ining the sentence makes clear that the court intended for the three-lev el reduction to be a v ariance because of a p olicy disagree m e nt with the p roperly calculated guidelines, n ot a c hange to the guidelines calculation. R. 27, at 3, ¶ VI.D. And Griffith points to no error in the district court’s guidelines ca lc u lation here. Indeed, Griffith did not challenge the factual basis o f the guidelines calculation or the final offense lev el in the district
cou rt. He argued instead that the resulting offense lev el w as inconsistent with the purposes of sentencing expressed in section 3553(a). He did not deny , for example, that some o f the photographs depicted prepubescent minors, or that certain images portrayed violence tow ards and sexual abuse of toddlers. H e conceded that he o ffered access to his T witter accounts in exchange for a dditional child pornography , that he used a computer an d that his offenses inv olv ed more than 600 images when c alculated under guidelines standards. But in conceding the bas ic f acts underlying the calculation and the result of the "rote application" of the guidelines provisions, he objected o nly that the re su lt produced a d r aconian and unjustified se ntence. In light of all of the circumstances, the only reasonable reading of the sentencing transcript is that the court understood and announced a correct calcu la tion of the guidelines and then v aried downw ard by analogy t o certain guidelines factors during the discussion o f the statutory factors. Finally , w e c a n qu ickly dispense with any claim that the fin a l senten ce w a s s ubst anti ve ly un r ea so n abl e. When a ssessin g the sub s tantive reasonableness of a sentence under the abuse of d i scretion sta nda rd, w e presume that a within-guidelinesNo. 18-1310 13

sentence is reasonable

. Rita v
. United States , 551 U.S. 338, 347–56 (2007); United States v
. Moore, 851 F .3d 666, 674 (7th Cir

. 2017). That same presumption obviously applies to a belowguidelines sentence, such as the o ne imposed here. Moore, 851 F .3d at 674. Griffith bears the burden of rebutting that presumption by demonstrating that the sentence is unreasonably high in light of the section 3553(a) factors. United States v
. Mykytiuk

, 415 F .3d 606, 608 (7th Cir

. 2005). Griffith attempts to surmount that c h allenge by arguing tha t his collection of child pornography w as r elativ ely small; that his crimes inv olv ed no contact offenses; that a tw enty-year term w a s a de facto life sentence for a man of his a ge and health; that the sentence w as unnecessary to deter recidivism because of his age and the l engthy term of supervised release; and that section 2G2.2 encourages unreasonably h arsh sentences. The district court carefully considered and addressed each of these arguments, and Gr i ffi th’s cl a i m on a p peal amounts to a request that w e substitute our judgment for that of the district court. In the usual course, it w ould be the gov ernment, not the defendant, arguing tha t the court abused its discretion by granting
a significantly below-gu ide lines sentence. In any case, the district court did not abuse its discretion in granting Griffith an eighty-four month break from the bottom of the properlycalculated guidelines sentencing range, and the sentence w as substantiv ely reasonable. AFFIRMED.