In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1477

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LARRY G. SMITH,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 05 CR 179—Rudy Lozano, Judge.

ARGUED JANUARY 9, 2009—DECIDED APRIL 17, 2009

Before MANION, ROVNER, and SYKES, Circuit Judges.

MANION, Circuit Judge. Larry G. Smith pleaded guilty

to one count of distributing child pornography in violation of 18 U.S.C. § 2252(a)(2) after law enforcement officers

discovered more than 3,000 images of child pornography

on Smith’s computer hard drives, which had been set up

to share the images over the internet. The district court

sentenced Smith to 240 months’ imprisonment. Smith

appeals his sentence. We affirm.
2 No. 08-1477

I.

Larry Smith first came to the attention of law enforcement officials when an FBI agent entered an internet chat

room devoted to preteen sexual pictures. Inside the chat

room, the agent was able to exchange dummy files (files

that could not be opened but had names suggesting

that they contained child pornography) for actual images

and videos of child pornography. Further investigation

revealed that the computer operating the server which

distributed the child pornography was located at Smith’s

house.

When, in the early morning hours, agents executed the

warrant they obtained to search the house, they found

Smith in his bedroom with a 16-year-old girl. They also

found two books about Adolph Hitler and satanic

rituals, a loaded handgun, and six computers. One of the

computers’ hard drives contained approximately 3,114

images of child pornography, while another computer

had over 500 images on its hard drive. The pictures

included many of prepubescent children—as young as

two years old—violently being forced to engage in sexual

conduct, several of prepubescent children in bondage

with their genitals exposed, and two of an animal

engaging in a sex act with a young girl. In addition to

the images, the hard drives also contained 40 videos of

child pornography. One video featured two screaming

children being raped by an adult; another depicted a

naked three-year-old girl being forced to perform a sex

act on an adult male.

Smith was indicted and his trial scheduled for January

17, 2006. After several continuances, Smith moved on July
No. 08-1477 3

20, 2006, for funds under the Criminal Justice Act (“CJA”)

to retain a psychological expert. The court granted his

request on August 1, 2006. Following several more continuances, Smith pleaded guilty on March 2, 2007, to

the third count of the indictment, distributing child

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

Smith’s sentencing proceeded in four parts over a fourmonth span. At the first hearing, held October 4, 2007,

Smith presented the expert testimony of Robert Hundt, a

licensed clinical social worker and certified addictions

counselor. Relying upon a “psychosexual assessment” of

Smith he had previously completed, Hundt opined

that Smith was treatable and therefore should only be

incarcerated for a short time. Hundt admitted, however,

that little research—and no credible testing—was available

to aid in determining whether someone like Smith posed

a risk of committing future offenses involving child

pornography. He also stated that he had “absolutely no[ ]”

idea what the appropriate amount of punishment was

for Smith.

The district court held a second hearing on November 15,

2007. At that hearing, the district court determined

Smith’s guidelines offense level was 38, yielding a sentencing range of 235 to 293 months’ imprisonment. The

court then invited Smith’s attorney to “address and

comment” on any of the 18 U.S.C. § 3553(a) factors. When

a discussion of the district judge’s role in sentencing

vis-à-vis the guidelines arose shortly thereafter, the

district court had the following exchange with Smith’s

counsel, Mr. Foster:
4 No. 08-1477

THE COURT: I say the Court can go higher or I can

go lower than the guidelines. That’s

not the party[.] I can go higher or

lower for several reasons, for no other

reason that I disagree that they’re

fair, or that there are reasons why

I should be higher or lower. But,

again, that’s not a departure.

MR. FOSTER: Right.

THE COURT: The word “depart” insinuates to me

that the guidelines are ironclad. I

don’t consider them to be ironclad.

Shortly after that exchange, Foster appeared to advocate

that the district court had the authority to completely

disregard the guidelines. The district judge jumped in:

THE COURT: Technically, Mr. Foster, I don’t know

that I agree with you on that. I think all

that tells me is that it’s up to me to

decide what’s a fair sentence.

MR. FOSTER: Up to you to decide what’s a fair sentence with total disregard for the

guidelines. . . . And I believe that with

Rita and Miranda after that, that a

district court judge at this stage can

simply enter a sentence with no concern—

THE COURT: I don’t think I have to ignore the guidelines, Mr. Foster.
No. 08-1477 5

MR. FOSTER: You don’t have to.

THE COURT: I can consult them. I can look at them.

I can determine whether they enlighten me as to what a fair sentence

is. Or if I want to ignore them, I still

have to—the bottom line, I have to

make a determination what a fair sentence would be.

MR. FOSTER: Right.

THE COURT: The guidelines are advisory.

The discussion then turned to Hundt’s qualifications.

The district judge stated that he “had some difficulty

accepting” Hundt as an expert because Hundt was

neither a psychiatrist nor psychologist, and the defense

had not shown that he was “qualified to make the diagnosis and the prognosis that he was making.” The court

then gave Foster an opportunity to flesh out Hundt’s

qualifications and took a ten-minute recess. After the

break, Foster stated that he wanted to address why the

court should accept Hundt as a non-scientific expert. The

court responded:

You can address it. But like I said, I will go through it,

but if you are going to address why you think

Mr. Hundt is an expert, I want to know why he’s an

expert, what he said, and how he drew the conclusion because there are a lot of comments that he made

from a self-answered questionnaire by the defendant.

And from that it appeared, at least—and I’m going

back from recollection right now, that one diagnosed
6 No. 08-1477

the problem which he may be able to do, psychologists

do that to some degree, and then talks about his cure

and everything else. I didn’t hear any expertise on

that, whether or not prison is going to be good for

him or bad for him, and whether or not he can be

cured in prison.

Having spelled out his concerns about Hundt’s qualifications, the district judge then launched into this aside:

Now, my experience from dealing with people that

I have sent to institutions is that the institutions have

experts in all these fields, and they determine

whether people are treatable, how long they’re treatable, and if they’re cured, then they can—they can

release somebody I had given life to at any time. I can’t

make them hold onto a person. Once he hits the

Bureau of Prisons, it’s up to the Bureau of Prisons

how long they’re going to keep them up to the maximum that I give.

Smith’s attorney quickly attempted to correct the district

judge, explaining that since the abolition of parole boards,

a person may not be released early from a federal prison

short of having served 85% of his sentence. The district

judge, referencing a pre-guidelines case as the basis of his

understanding, reiterated that he thought “the Bureau of

Prisons ha[s] a lot of say,” but noted “that’s neither

here nor there.”

The possibility of Smith being released earlier than the

85% threshold was discussed one more time near the

end of the November 16 hearing:
No. 08-1477 7

MR. FOSTER: Are we—and you said maybe they’ll

let him loose early. Judge, I don’t believe they will.

THE COURT: I said they could.

MR. FOSTER: They could. They could.

THE COURT: I don’t have any basis to say they’re

going to let him out early.

For the remainder of the sentencing proceedings, the

subject of whether Smith might be released earlier than

upon serving 85% of his sentence was never broached.

Unable to convince the court of Hundt’s qualifications,

Foster moved for a continuance to find another expert.

The court denied the motion:

THE COURT: Mr. Foster, respectfully, I’ve given

numerous continuances on this case.

I gave you time to go out and get an

expert. I even authorized funding for

the expert.

MR. FOSTER: Correct.

THE COURT: Every time I come up and tell you,

well, that expert is not believable or

does not meet the necessary qualifications based upon what he said, his

background didn’t impress me insofar

as his testimony is concerned, I’m

not going to keep giving you continuances until, you know, you find somebody either I get tired of saying I’m not
8 No. 08-1477

impressed by him or that, you know,

you’re satisfied with. That’s not the

way it works, Mr. Foster. I gave you a

chance to go there and get somebody.

Before the second sentencing hearing concluded, the

court and Foster had yet another discussion about 18

U.S.C. § 3553(a) and its relationship with the guidelines.

The court observed that, before Booker, “[i]t was a lot

stricter.” The court also pointed out “that the guidelines

[are] only advisory, and I can take a look at them as to

what a fair sentence will be.” To those observations, Foster

replied: “I guess what I’m saying is I couldn’t have

stood here pre-Booker and with integrity ask you to

ignore these guidelines, which is what I’m asking you to

do . . . .” The court responded: “You could’ve done it.

You may not have gotten as far as you do today. It might

be a polite way of saying we agree.”

The court held a third sentencing hearing the next day

and gave the government an opportunity to respond to

the sentencing issues raised by the defense. The court did

not convene again until nearly three months later when,

on February 11, 2008, it pronounced its sentence. The

court orally stated, in detail, its reasons for selecting its

sentence. It considered, among other things, the nature

and circumstances of the crime itself, including the duration of Smith’s operation of the child pornography-sharing

server, the planning that went into creating the server

and organizing the images, and the unusually appalling

nature of some of the images and videos depicting

violent sexual acts perpetrated on very young children.
No. 08-1477 9

The court also considered the resulting consequences of

the crime as well as the fact that Smith committed the

crime within a week of being freed on bond from state

custody. After discounting Hundt’s testimony because

of his lack of qualifications, the court found that a 240-

month sentence was “fair and reasonable given the

nature and circumstances of the crime” and would

“have a deterrent effect for others creating, downloading[,] and trading child pornographic images.” The

court noted that “the guideline range coincides with the

sentence and findings this Court has made and determined to be fair and reasonable.” Smith appeals his

sentence.

II.

On appeal, Smith presents four challenges to his sentence. First, he argues that the district court should have

granted him a continuance to obtain another expert after

the court discredited Hundt. Smith does not, however,

challenge the district court’s rejection of Hundt’s qualifications—only the denial of the continuance to find a new

expert.

Whether to grant or deny a continuance is a matter

of case management. United States v. Tanner, 544 F.3d 793,

795 (7th Cir. 2008). Management decisions “are for the

district judge; we intervene only when it is apparent that

the judge has acted unreasonably.” Griffin v. Foley, 542

F.3d 209, 217 (7th Cir. 2008) (quoting N. Ind. Pub. Serv. Co.

v. Carbon County Coal Co., 799 F.2d 265, 269 (7th Cir. 1986)).

Accordingly, this court “will overturn a trial court’s
10 No. 08-1477

The presiding magistrate judge granted Smith’s motion 1

seeking CJA funds to retain an expert on August 1, 2006—more

than a year before sentencing began.

disposition of a motion to continue only for an abuse of

discretion and a showing of actual prejudice.” United

States v. Tingle, 183 F.3d 719, 723 (7th Cir. 1999) (quoting

United States v. Blandina, 895 F.2d 293, 297 (7th Cir. 1989));

see also Morris v. Slappy, 461 U.S. 1, 11–12 (1983) (“[B]road

discretion must be granted trial courts on matters of

continuances; only an unreasoning and arbitrary

insistence upon expeditiousness in the face of a justifiable

request for delay violates the right to the assistance of

counsel.” (internal quotations omitted)).

The district court did not abuse its discretion in

refusing to give Smith another bite at the expert apple. The

court had already afforded Smith a fair opportunity to

present expert testimony. It had authorized CJA funds to

retain an expert and had given him plenty of time—over

a year —to find a qualified expert. Cf. United States v. 1

J.H.H., 22 F.3d 821, 831 (8th Cir. 1994) (finding no abuse

of discretion where district court gave defendant a

month between trial and sentencing to obtain a psychological evaluation). Having given Smith a fair opportunity to retain a suitable expert, the court was under no

obligation to let him have another chance to present expert

testimony—especially when public money had already

been expended. “If at first you don’t succeed, try, try,

again” might make a memorable maxim, but it is ill-suited

as a principle for case management.
No. 08-1477 11

Additionally, Smith gave the district court no reason

to believe that he could ever succeed in finding a satisfactory expert. See United States v. Rinaldi, 461 F.3d 922, 929

(7th Cir. 2006) (observing that, when considering whether

prejudice arises from the denial of a continuance, a

court can look to “the likelihood that additional time

would have yielded information useful at sentencing”).

Smith’s attorney told the court that he had shopped

around and that Hundt was the only person in Northwest Indiana who performed psychosexual assessments.

Moreover, Hundt himself admitted on the record that

not much research existed on the question of whether

someone like Smith was a potential risk to commit future

offenses involving child pornography. He also explained

to the district court that experts had yet to devise

testing that would provide insight into the question of

future risk. Given Hundt’s testimony about the dearth of

testing and studies on precisely the issue on which

Smith sought the aid of expert testimony, the district

court was well within the bounds of reason to conclude

that Smith had little chance of finding a credible expert.

Smith has submitted nothing to call into question the

reasonableness of that conclusion; he therefore has not

shown that he was prejudiced by the denial of the continuance.

Next, Smith argues that the district court erred by

treating the guidelines as presumptively applicable.

Whether the district court followed the proper procedures

after United States v. Booker, 543 U.S. 220 (2005), in imposing

sentence is a question of law we review de novo. United

States v. Mendoza, 510 F.3d 749, 754 (7th Cir. 2007). The

Supreme Court set forth the proper process for deter-
12 No. 08-1477

mining a sentence in Rita v. United States, 127 S. Ct. 2456

(2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007).

First, the district judge will normally begin by considering the presentence report and its interpretation of

the guidelines. Rita, 127 S. Ct. at 2465. The Supreme

Court has stressed that “district courts must treat the

Guidelines as the ‘starting point and the initial benchmark.’ ” Kimbrough, 128 S. Ct. at 574 (quoting Gall v. United

States, 128 S. Ct. 586 (2007)). After considering the guidelines, the district court will then subject the defendant’s

sentence “to the thorough adversarial testing contemplated by the federal sentencing procedure.” Rita, 127

S. Ct. at 2465. The district court accomplishes that task

by hearing arguments from the prosecution and defense

that a guidelines sentence should not apply—because the

case falls outside the heartland of the guidelines, or

because a guidelines sentence fails to reflect the § 3553(a)

factors, “or perhaps because the case warrants a different

sentence regardless.” Id. The Supreme Court stated that,

“[i]n determining the merits of these arguments, the

sentencing court does not enjoy the benefit of a

legal presumption that the Guidelines sentence should

apply.” Id.

To support his argument that the district court, contrary

to the Supreme Court’s proscription, applied a legal

presumption in favor of the guidelines, Smith cites an

exchange between his counsel and the district judge

during the first sentencing hearing:

MR. FOSTER: Right. But that’s where I’m headed.

I know that you have—yeah, there’s
No. 08-1477 13

certain parameters on that, and you’re

going to have a choice between the

mandatory minimum and whatever

the statutory limit is here.

THE COURT: No. I have to go back to the guidelines. You better tell me why the guidelines are improper.

That exchange occurred while the court was attempting

to understand the relevance of Hundt’s testimony to

Smith’s sentencing. At first blush, the court’s statements

may give the impression that the district judge misapprehended his role post-Booker and placed undue emphasis on the guidelines.

An examination of the sentencing proceedings in their

entirety, however, dispels any doubt that the district

court incorrectly understood, or improperly applied, the

procedural framework outlined in Rita. The district

judge’s statements during the second sentencing hearing

show that he understood the proper role the guidelines

play in sentencing. During the presentation of mitigating

factors by Smith’s counsel, the district judge stated that

he could go higher or lower than the guidelines “for no

other reason than I disagree that they’re fair, or that there

are reasons why I should be higher or lower.” He also

stated that he did not consider the guidelines to be “ironclad.” And when Smith’s counsel appeared to be insinuating that the district court could completely disregard

the guidelines, the district judge clarified that he did not

“have to ignore the guidelines,” while at the same

time recognizing that “it’s up to me to decide what’s a

fair sentence.” Cf. Kimbrough, 128 S. Ct. at 574.
14 No. 08-1477

The district court’s actions support its statements. The

court first calculated the guidelines range. It then gave

counsel for both sides an opportunity to address any of

the § 3553(a) factors they believed were relevant to sentencing, as well as any objections they had to the guidelines range. When it pronounced its sentence, the district

court gave a whole host of reasons consistent with the

§ 3553(a) factors. See, e.g., 18 U.S.C. § 3553(a)(1) (nature

and circumstances of the offense and the history and

characteristics of the defendant); id. (a)(2)(A) (seriousness

of the offense and just punishment for the offense); id.

(a)(2)(B) (adequate deterrence). It then noted that “the

guideline range coincides with the sentence and findings

this Court has made and determined to be fair and reasonable.” Far from evincing a presumption that the guidelines applied, the district court’s statements and actions

show that the court arrived at a sentence it believed was

fair independently of the guidelines, though with due

consideration for what the guidelines prescribed.

Smith also argues that the district court failed to adequately address the § 3553(a) factors. Specifically, Smith

takes issue with the district court’s failure to discuss all

of the mitigating circumstances surrounding the offense.

He contends that, as a consequence of that failure, the

sentence the district court imposed was not reasonable.

A district judge must allow a defendant to point out

any of the § 3553(a) factors that might justify a sentence

outside of the guidelines range, and must consider those

factors when determining the sentence. United States v.

Tyra, 454 F.3d 686, 687 (7th Cir. 2006). But the judge need
No. 08-1477 15

not “write a comprehensive essay applying the full panoply of penological theories and considerations, which is

to say everything invoked or evoked by section 3553(a)—to

the case before him.” United States v. Dean, 414 F.3d 725,

729 (7th Cir. 2005). Instead, the district judge need only

give an “adequate statement of the judge’s reasons,

consistent with section 3553(a), for thinking the sentence that he has selected is indeed appropriate for the

particular defendant.” Id.; see also United States v. George,

403 F.3d 470, 472–73 (7th Cir. 2005) (“Judges need not

rehearse on the record all of the considerations that 18

U.S.C. § 3553(a) lists . . . .”).

The district judge did so here. As mentioned above,

his stated reasons for the sentence conformed with the

considerations listed in § 3553(a). The district judge

also explicitly stated that he had taken into account all

the arguments and submissions of Smith’s counsel when

fashioning a sentence. Thus, between the district court’s

reasoned consideration of the § 3553(a) factors, its attention to the arguments and concerns presented by

Smith’s counsel, and the presumption of reasonableness

we apply on appeal, see United States v. Whited, 539 F.3d

693, 699 (7th Cir. 2008), we see no basis under 18 U.S.C.

§ 3553(a) to disturb Smith’s sentence.

Lastly, Smith asserts that reversal is warranted based

on the district court’s statements during the November 15

sentencing hearing about the possibility of an early

release. Recall that during a discussion of Hundt’s qualifications at the second sentencing hearing, the court mentioned its “understanding” was that the Bureau of
16 No. 08-1477

See Sentencing Reform Act of 1984, Pub. L. No. 98-473, Title II,

2

98 Stat. 1987.

Prisons (“BOP”) had unfettered discretion to release

prisoners early if BOP experts determined that a prisoner

was cured. That understanding is incorrect. Since the

abolition of parole, the earliest the BOP may release a 2

prisoner is upon serving 85% of his sentence. See 18 U.S.C.

§ 3624(a)–(b). According to Smith, the district court’s

mistaken comments at the second sentencing hearing

affected his sentence.

Smith, however, bears the burden of showing that the

district court relied on the possibility of Smith’s release

prior to the 85% threshold when sentencing him. See

United States v. Williams, 503 U.S. 193, 203 (1992) (“[T]he

party challenging the sentence on appeal . . . bears the

initial burden of showing that the district court relied

upon an invalid factor at sentencing . . . .” (emphasis

added)). Smith cannot meet that burden. The record

provides no support for his claim that the possibility of

release prior to serving 85% of his sentence played any

role in the district court’s determination of his sentence.

The context in which the district judge made the comments about early release is crucial. The district court

did not make them during the February 11, 2008 hearing—the fourth and final hearing at which the district

court pronounced sentence and gave its reasoning for the

sentence it chose. Rather, the district judge’s aside about

early release occurred at the second sentencing hearing,

held on November 15, 2007, three months and two
No. 08-1477 17

Our dissenting colleague asserts that the district judge’s 3

“mistaken belief” about early release played a role in his

decision to give Hundt’s testimony little weight because the

judge assumed that the BOP would do its own assessment of

Smith’s future dangerousness. Dissent at 26-27. It bears repeating that Smith has not challenged on appeal the district court’s

finding that Hundt’s testimony was entitled to little weight.

Nevertheless, the dissent’s assertion about the impact of the

court’s mistaken belief finds no support in the record. During

the February 2008 hearing—which, again, was the hearing

where the district judge explicitly gave his reasoning for

Smith’s sentence—the district court set forth on the record

several reasons for giving Hundt’s testimony little weight. The

court commented on Hundt’s lack of qualifications to opine

on Smith’s future dangerousness. The court also noted

Hundt’s complete reliance on Smith’s self-serving statements

from a self-answered questionnaire to support his conclusions. Additionally, the court emphasized the lack of evidence

and testing from experts in the same field supporting Hundt’s

theories. None of the reasons given by the district court for

rejecting Hundt’s testimony was based on a belief that Hundt’s

testimony was unnecessary because BOP experts would

perform a similar analysis.

hearings prior to the pronouncement of sentence. Moreover, at the time the district judge made those comments,

he was not addressing Smith’s sentence. Rather, he had

been explaining his concerns about the basis of Hundt’s

expert testimony.3

Furthermore, while the fact that Smith could be

released upon serving 85% of his sentence (the correct

understanding of early release under current law) was
18 No. 08-1477

mentioned several times during the sentencing hearings

held thereafter, nothing was said at the later sentencing

hearings about the possibility of an earlier release for

Smith if the BOP determined that he was cured. Indeed,

the only other time the issue of early release was brought

up was later in that same November 15, 2007, hearing.

Smith’s lawyer, not the court, initiated the discussion of

early release that second time. And the district court shortcircuited the exchange, acknowledging that it did not

“have any basis to say they’re going to let him out early.”

Most importantly, the district judge—immediately after

the erroneous aside about early release—expressly discounted the relevancy of the entire discussion to sentencing, stating that it was “neither here nor there.” That

the district judge thought the discussion irrelevant to

sentencing was underscored at the final hearing three

months later. At that hearing, the judge pronounced

sentence and gave a detailed statement of reasons on the

record for the sentence he selected. Nowhere did he

make any mention of the possibility of early release for

Smith, much less a statement seeming to indicate that he

relied on that possibility when selecting his sentence.

Smith argues, however, that the court’s comments at

the final sentencing hearing about its hopes for Smith’s

psychological treatment and cure indicate its reliance on

a misunderstanding of early release. Those comments do

little more than express the district court’s desire that
No. 08-1477 19

Smith cites the following statement, made after the district 4

court had listed its reasons for the sentence and stated that it

found a sentence of 240 months “fair and reasonable”: “Hopefully this sentence will allow the defendant to be treated in an

effort to cure his psychological and medical problems in this

area, if possible.” Smith also points to the district court’s

statement towards the end of the hearing in response to

Smith’s request that he be placed at a BOP institution close to

Chicago:

Mr. Foster, you had contacted the Court by way of your

motion regarding the placement of the defendant. I do not

make a habit of putting a defendant at a specific institution.

It’s not like picking a hotel. In this case, I have concerns

that I would like to see the defendant receive some treatment psychologically, and I think the Bureau of Prisons is

probably going to do that anyway. What I am willing to do

is to recommend an institution as close to Chicagoland

as possible given that they get him to an institution for

psychological treatment . . . and then the second object is

to get him as close to Chicagoland as possible.

Smith get psychological treatment while incarcerated.4

Yet Smith would have us divine from them an implied

reference to an aside about early release uttered at a

hearing nearly three months prior—an aside about which

the judge expressly said at the time was “neither here

nor there.” We see no need for such clairvoyance when

the record is as clear as it is here. The district court

offered many reasons at the February 2008 hearing for

sentencing Smith to 240 months’ imprisonment. The

possibility of an early release was not among them.

The district judge clearly stated his reasons at the last

sentencing hearing when he pronounced sentence; no-
20 No. 08-1477

where did he mention the possibility of early release. Yet

our dissenting colleague would hold that the district

judge’s side comments three months and two hearings

prior somehow impacted his determination of Smith’s

sentence. According to the dissent, the comments about

the possibility of early release infected the court’s decisionmaking process because the district court never

expressly repudiated them on the record. We conclude

this was not necessary. We also assume the dissent does

not mean to imply that all the district court’s sentencing

decisions since the passage of the Sentencing Reform

Act of 1984 were inappropriate. We find it essential to

evaluate the reasons actually given by the district court

during the February 2008 hearing for Smith’s sentence.

As none of those reasons implicated early release,

Smith’s argument that the district court relied on the

possibility of early release in fashioning his sentence

must fail.

The dissent also would not credit the district court’s

dismissive statement about the discussion of early release

being “neither here nor there.” Dissent at 27. The dissent

correctly observes that just because a district court says

a decision is correct as a matter of law does not make it

so. The district judge’s musings during his detour into

early release were not correct as a matter of law. But that

is not the issue here. We must determine whether the

district judge relied on the misunderstanding in determining Smith’s sentence. See Williams, 503 U.S. at 203.

We conclude he did not. He discarded his inaccurate

observations at the end of his discussion on the reliability of Smith’s proposed expert. The digression into early
No. 08-1477 21

release was “neither here nor there.” Consequently, there

is no need to remand this case for resentencing.

III.

The district court acted well within its discretion when

it denied Smith another continuance to allow him to try to

find a more acceptable expert after the court found

Hundt’s qualifications lacking. The court also correctly

applied 18 U.S.C. § 3553(a) when sentencing Smith, and

its statement of reasons supporting the 240-month sentence was more than adequate under that section. Finally,

there is no evidence on the record that the district court’s

tangential statements about early release during the

second sentencing hearing played any role in the court’s

determination of Smith’s sentence at the fourth and

final sentencing hearing three months later. We AFFIRM.

ROVNER, Circuit Judge, dissenting. There is no doubt that

Larry G. Smith committed a heinous crime when he

decided to collect and trade child pornography. There is

no doubt that the images contained on his computer

were of the most horrific kind. There is no doubt that he

is a very disturbed young man. Unfortunately, there is

also no doubt that the district judge seriously misstated

the law regarding the role of the Bureau of Prisons (“BOP”)
22 No. 08-1477

in determining release dates for federal prisoners. The

majority seems to agree that the district court’s “understanding” that the BOP had unfettered discretion to

release prisoners early if BOP experts determined that

the prisoner was cured is “incorrect.” Supra at 16. The

majority finds that Smith has failed to demonstrate that

the district court relied on this misunderstanding of

the law in determining his sentence. I find it incomprehensible that such a misunderstanding could not

influence a judge’s sentencing decision.

The original exchange, which came after defense counsel

stated he would like to address the defense expert’s

testimony, is worth repeating in its entirety:

THE COURT: You can address it. But like I said,

I will go through it, but if you are going to address why you think

Mr. Hundt is an expert, I want to

know why he’s an expert, what he

said, and how he drew the conclusion

because there are a lot of comments

that he made from a self-answered

questionnaire by the defendant. And

from that it appeared, at least—and

I’m going back from recollection

right now, that one diagnosed the

problem which he may be able to do,

psychologists do that to some degree,

and then talks about his cure and everything else. I didn’t hear any expertise on that, whether or not prison is
No. 08-1477 23

Mr. James Foster is Smith’s appointed counsel. 1

going to be good for him or bad for

him, and whether or not he can be

cured in prison.

Now, my experience from dealing

with people that I have sent to institutions is that the institutions have experts in all these fields, and they determine whether people are treatable,

how long they’re treatable, and if

they’re cured, then they can—they can

release somebody I had given life to

at any time. I can’t make them hold

onto a person. Once he hits the Bureau of Prisons, it’s up to the Bureau

of Prisons how long they’re going to

keep them up to the maximum that

I give.

MR. FOSTER: I’m not following you, Judge. You 1

sentence someone to X number of

months to the Bureau of Prisons, with

due respect, the Bureau of Prisons

can’t jockey your sentence around.

THE COURT: I’m sorry, Mr. Foster. That’s not my

understanding.I have had people that

I’ve sent to prison for 30 years, and 8,

9, 10 years they release them be it

overcrowding, be it whatever reasons
24 No. 08-1477

they want. It’s under their jurisdiction.

Now, if I sentence somebody to 10 or

15 years, they can’t up it to 30 or 40

years. They don’t have that power,

I don’t think.

MR. FOSTER: I have just never in the years I’ve practiced, never been fortunate enough to

represent a person who was released

early from a federal prison short of the

85 percent since we got rid of parole

boards. I never saw it happen; never

read a case citing that they had the

authority to do that, but—

THE COURT: Mr. Foster, this is preguidelines. I think

you were involved in a drug case that

I had, the Bloom people.

MR. FOSTER: I remember that vaguely.

THE COURT: And several of those people received

very, very heavy sentences, and they

were released.

Don’t get me wrong, it wasn’t they

weren’t [sic] released in months, but

they were released far before the time

that, you know, I had sentenced them.

MR. FOSTER: And I do think that back there where

we used to say a rule of thumb was

one-third and where we still had pa-
No. 08-1477 25

role boards, I think it was possible.

But, boy, I think today they do 85 percent of what you give them minus a

very—a lot of circumstance.

THE COURT: I lose track of them, Mr. Foster, after

they leave my court, but my understanding is that the Bureau of Prisons

have a lot of say. But that’s neither

here nor there.

R. 116, at 37-39 (emphasis added).

Of course, as the majority and the government concede,

the BOP does not “have a lot of say” in determining the

release dates for federal prisoners. Rather, release dates are

determined by statute. See 18 U.S.C. § 3624. Subsection (a)

provides that “[a] prisoner shall be released by the

Bureau of Prisons on the date of the expiration of the

prisoner’s term of imprisonment, less any time credited

toward the service of the prisoner’s sentence as provided

in subsection (b).” Subsection (b) governs credit toward

service of a sentence for “satisfactory behavior.” Under

that provision, a prisoner who has displayed “exemplary

compliance with institutional disciplinary regulations”

may receive a credit of up to fifty-four days per year

toward completion of the sentence. This amounts to a

fifteen percent reduction for a prisoner who earns the full

credit during each year of the term of imprisonment.

Acknowledging the district court’s error, the government

argues only that it was harmless. See Fed. R. Crim. P. 52(a)

(“Any error, defect, irregularity, or variance that does not

affect substantial rights must be disregarded.”). I do not

believe such an error could be harmless.
26 No. 08-1477

There are two significant problems with the majority’s

analysis of this issue. First, a district judge who believes

the BOP can release a prisoner at any time, either because

the prisoner has been cured or because the prison is

overcrowded, mistakenly thinks he is sentencing a defendant to a term of up to twenty years rather than a

straight twenty years. Any defendant can readily tell the

difference between a fixed term of twenty years (minus

fifteen percent for good behaviorin the federal system) and

a term of up to twenty years. Most prisoners would prefer

the latter. If the judge did not understand that the defendant would serve at least seventeen of the twenty years,

but instead thought that Smith could be released by the

BOP as soon as he was cured, then the court did not

understand the gravity of the sentence.

Second, because the court believed that BOP experts

would determine when Smith could be safely released, it

delegated to the BOP the court’s own responsibility for

determining how dangerous Smith is and whether he

could be rehabilitated. This mistaken belief also allowed

the court to be dismissive of Smith’s proffered expert

because the court assumed a BOP expert would “determine

whether people are treatable, how long they’re treatable,

and if they’re cured[.]” R. 116, at 38. With that assumption,

a court would have no need to seriously consider the

qualifications or testimony of the defendant’s expert on

those issues. Mr. Hundt, Smith’s proffered expert, testified

that he is a licensed clinical social worker and certified

addictions counselor. He received his graduate degree

from the University of Chicago, and has received additional training from the federal government in the treat-
No. 08-1477 27

The majority correctly points out that Smith did not appeal 2

the district court’s finding that Hundt’s testimony was entitled

to little weight. I address the effect of the court’s misunderstanding on the rejection of the expert to give context, to explain the

possible wide-ranging effects of such a misapprehension, and

because the government in its brief argues that the colloquy

concerning the “side-issues” (specifically, the early release

issue) was rendered “completely meaningless” once the court

discounted the expert. To the contrary, the court’s dismissal

of the expert was likely a side-effect of its misunderstanding

about the role of the BOP in early release.

ment of sex offenders. He had been treating sex offenders

for approximately ten years at the time of his testimony,

mostly for the Department of Corrections in Indiana.

Mr. Hundt also told the district judge that he often testifies

in court, predominantly for the prosecutor’s office.

These credentials are not easily dismissed, although the

district court could, in its discretion, reject them as inadequate. But the court may not reject an expert because it

mistakenly believes it can delegate to the BOP’s experts

the task of assessing Smith’s potential for rehabilitation.

As I read the sentencing transcript, it appears the district

court relied at least in part on that mistaken belief.2

The majority states that the district court “expressly

discounted the relevancy of the entire discussion of early

release to sentencing, stating that it was ‘neither here nor

there.’ ” Supra at 18. Why we should accept the district

court’s blithe dismissal of the significance of its own error

is mystifying. We have no obligation to defer to a district

court making an error of law. United States v. Wesley, 422
28 No. 08-1477

F.3d 509, 512 (7th Cir. 2005) (review of an underlying

legal ruling is non-deferential).

The majority cites the district court’s later statement,

“I don’t have any basis to say they’re going to let him out

early,” supra at 18, as evidence that the court correctly

understood the law relating to the BOP’s authority. See

R. 116, at 93. But we must review this statement in the

context of the entire colloquy. As quoted above, defense

counsel attempted to correct the court’s error of law,

noting that under current federal law, all defendants

serve at least eighty-five percent of their sentences. R. 116,

at 38-39. Attempting to repeat this correction of the law

later, defense counsel said, “[Y]ou said maybe they’ll let

him loose early. Judge, I don’t believe they will.” R. 116,

at 93. The court then repeated its earlier error, countering

with, “I said they could,” meaning the court believed

that the BOP had the legal authority to release Smith

early. R. 116, at 93. When the court followed this error

with its statement that it did not “have any basis to say

they’re going to let him out early,” the court clearly

meant it had no factual basis to believe Smith would be

released early; there was, after all, no way for the court to

know whether the BOP would be able to treat Smith

and declare him cured. R. 116, at 93. There is no evidence

in this record that the court ever understood that the

BOP has no legal authority to release Smith early.

The majority also states that “the fact that Smith could be

released upon serving 85% of his sentence (the correct

understanding of early release under current law) was

mentioned several times during the sentencing hearings
No. 08-1477 29

held thereafter[.]” Supra, at 17-18. The only references to

the eighty-five percent figure that I could find in the record

after the errors cited above were: (1) defense counsel’s

statement that “[w]e can put him in there for 20 years, and

at 85 percent we know they’ll turn him loose, and there’s

a possibility you say of getting loose earlier.” R. 116, at 95;

(2) government counsel’s statement that “[e]ven a maximum sentence of 20 years, which means that he would

do 17 years of real time, gets him out when he’s 40.” R.

117, at 34; and (3) government counsel’s oblique

reference that “[w]e’re asking to impose lifetime supervised release given the fact that he’ll be 40 years old

when he gets out[.]” R. 117, at 43.

The majority contends that, although there were several

additional references to the correct understanding of early

release, “nothing was said at the later sentencing hearings

about the possibility of an earlier release for Smith if the

BOP determined he was cured.” Supra, at 18. But none

of those subsequent statements by counsel provide any

evidence that the court understood that its original statement of the law was in error. Balanced against defense

counsel’s attempts to clear up the issue (government

counsel remained strangely silent as defense counsel

attempted to correct the court’s error), we have an alarmingly confused statement from the court regarding the

authority of the BOP to release prisoners early. The

absence of any subsequent reference to the error during

the final sentencing hearing did not cure the problem.

I also see no need for “clairvoyance” (supra at 19) when

common sense tells us that this is the kind of error that

would pervade a judge’s decision-making process. More-
30 No. 08-1477

over, there is no special reason to require that the

judge repeat the error at the final sentencing hearing

before we treat it as a real error. An error is harmless if,

considering the record as a whole, “the error did not affect

the district court’s selection of the sentence imposed.”

Williams v. United States, 503 U.S. 193, 203 (1992). An error

that changed the court’s basic framework for determining the sentence cannot be called harmless.

Finally, citing the Supreme Court’s opinion in Williams,

the majority remarked that “Smith bears the burden of

showing that the district court relied on the possibility of

Smith’s early release prior to the 85% threshold when

sentencing him.” Supra at 16 (emphasis in original).

The Court’s full statement of the standard is instructive:

We conclude that the party challenging the sentence

on appeal, although it bears the initial burden of

showing that the district court relied upon an invalid

factor at sentencing, does not have the additional

burden of proving that the invalid factor was determinative in the sentencing decision. Rather, once the

court of appeals has decided that the district court

misapplied the Guidelines, a remand is appropriate

unless the reviewing court concludes, on the record as

a whole, that the error was harmless, i.e., that the

error did not affect the district court’s selection of the

sentence imposed. See Fed. Rule Crim. Proc. 52(a).
No. 08-1477 31

Although the error in Smith’s case was one of law rather 3

than the result of a misapplication of the guidelines, the standard for harmless error is the same.

The majority assumes that I do “not mean to imply that all of 4

the district court’s sentencing decisions since the passage of

the Sentencing Reform Act of 1984 were inappropriate.” I make

no comment on cases that are not before us. I certainly hope

the district court judge has not held this mistaken belief since

the passage of that Act, and that this was a momentary lapse,

a blip of memory or speech that affects even distinguished

jurists from time to time. If we had remanded the case, the

district judge might have clarified that he was referring only

(continued...)

Williams, 503 U.S. at 203. As I noted above, I believe 3

Smith has met his burden of demonstrating that the

district court relied on an invalid factor at sentencing.

Smith does not bear “the additional burden of proving that

the invalid factor was determinative in the sentencing

decision.” Williams, 503 U.S. at 203. In harmless error

analysis, it is the government’s burden to prove that the

error was not prejudicial. United States v. Mansoori, 480

F.3d 514, 523 (7th Cir. 2007). The government has failed

to meet that burden here.

The district court might well decide again to sentence

Smith to a term of twenty years, and I do not mean to

imply with my dissent that twenty years would not be a

reasonable sentence. But even defendants who commit

the most abhorrent crimes deserve a sentencing decision

that is not influenced by legal errors if we are to maintain

the rule of law. In light of the district court’s legal error, 4
32 No. 08-1477

(...continued) 4

to pre-guidelines cases. We have only the transcript on which

to rely at this stage, however, and the transcript twice

indicates a mistaken belief that is never corrected.

4-17-09

which went uncorrected by the court for the remainder of

the sentencing hearing, I believe we should vacate the

sentence and remand for a new sentencing. Therefore,

I respectfully dissent.