PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

v.  No. 09-4007

CHRISTOPHER ALLEN MORACE,

Defendant-Appellee. 

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

W. Earl Britt, Senior District Judge.

(5:08-cr-00127-BR-1)

Argued: December 4, 2009

Decided: February 11, 2010

Before SHEDD and DUNCAN, Circuit Judges, and

T. S. ELLIS, III, Senior United States District Judge for the

Eastern District of Virginia, sitting by designation.

Vacated and remanded by published opinion. Judge Shedd

wrote the opinion, in which Judge Duncan and Senior Judge

Ellis joined.

COUNSEL

ARGUED: Joe Exum, Jr., OFFICE OF THE UNITED

STATES ATTORNEY, Raleigh, North Carolina, for Appel-
lant. Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellee. ON

BRIEF: George E. B. Holding, United States Attorney, Anne

M. Hayes, Jennifer P. May-Parker, Assistant United States

Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellant. Thomas P.

McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal Public Defender, OFFICE OF THE FEDERAL

PUBLIC DEFENDER, Raleigh, North Carolina, for Appellee.

OPINION

SHEDD, Circuit Judge:

Christopher Allen Morace pled guilty to one count of possessing child pornography. See 18 U.S.C. § 2252(a)(4)(B).

Varying downward from the 41-51 month advisory sentencing range, the district court sentenced Morace to five years of

probation and ordered him to pay a $3,000 fine. The government now argues that the sentence is unreasonable. For the

following reasons, we vacate the sentence and remand this

case for further proceedings.

I

A.

In 2007, a criminal investigation revealed that Morace had

traded child pornography with an individual in California

through the use of a peer-to-peer computer program. See generally Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.,

545 U.S. 913, 919-20 (2005) (explaining that peer-to-peer

networks permit the users’ computers to "communicate

directly with each other, not through central servers"). During

a search of Morace’s residence, investigators seized two computers and various types of computer media. Analysis of this

2 UNITED STATES v. MORACE
material revealed that Morace possessed 159 images of child

pornography (84 separate images and one video that is equivalent to 75 images). These images include numerous depictions of prepubescent girls who appear to be under the age of

12, and one image depicts a prepubescent girl exposing herself. At least 10 child-victims have been identified in this

case.

As a result of the investigation, the government filed a

criminal information charging Morace with one count of violating § 2252(a)(4)(B). He thereafter entered into a written

plea agreement, waived his right to be indicted, and pled

guilty to the charged crime. In the plea agreement, the government promised (absent changed circumstances) it would recommend Morace be sentenced at the low end of the advisory

sentencing range. The statutory maximum penalty for his

crime is 10 years, and the statutorily authorized term of supervised release is not less than five years or life. See 18 U.S.C.

§§ 2252(b)(2), 3583(k).

Before sentencing, a probation officer calculated Morace’s

advisory sentencing range as part of the presentence investigation report ("PSR"). Using the 2007 Guidelines Manual, the

officer assigned a base offense level of 18 pursuant to

U.S.S.G. § 2G2.2(a)(1); added two levels pursuant to

§ 2G2.2(b)(2) because the material involved a prepubescent

minor or a minor who had not attained the age of 12; added

two levels pursuant to § 2G2.2(b)(6) because the offense

involved the use of a computer for the possession of the material; and added three levels pursuant to § 2G2.2(b)(7)(B)

because the offense involved at least 150 images but less than

300. From this revised offense level of 25, the officer subtracted three levels pursuant to U.S.S.G. § 3E1.1(b) for acceptance of responsibility, resulting in a total offense level of 22.

Morace’s lack of a prior criminal record placed him in criminal history category I; accordingly, his advisory sentencing

range was 41-51 months. Neither party objected to the PSR.

UNITED STATES v. MORACE 3
At sentencing, the district court and the parties agreed that

the advisory sentencing range was 41-51 months. Moreover,

Morace’s counsel informed the court that the parties had stipulated to a sentence at the low end of the range and stated that

a 41-month sentence would be reasonable. Morace then spoke

briefly to the court, expressing remorse and identifying his

rehabilitation efforts. After Morace spoke, the Assistant

United States Attorney ("AUSA") concurred that 41 months

would be appropriate, stating:

The government’s main concern in this case is the

Defendant’s actual contact in any way with any

minors. The program that he was using for the downloading and sharing of these images had the capacity

to actually have a simultaneous chat log with the

people in this peer-to-peer program. There was no

evidence the Defendant had any actual contact with

any children. He had a good number of images on

his computer. Most of those images were of young

girls. Most of those images were not pornographic.

The Defendant has no prior record. He doesn’t

appear on any list for sharing this sort of thing. The

government’s interest would be vindicated by a sentence of 41 months.

J.A. 49-50. Following an off-the-record bench conference, the

court continued the sentencing hearing. No explanation for

the continuance appears in the record.

Approximately two months later, the district court reconvened the sentencing hearing. After confirming that the only

matter left to be done was imposition of the sentence, the

court announced the downward variance from the advisory

sentencing range to a five-year term of probation, explaining:

This sentence represents the variance from the advisory guideline range. Based on the factors outlined

4 UNITED STATES v. MORACE
in [§ 3553(a)], the court, in determining the particular sentence to impose, has considered the nature and

circumstances of the offense and the history and

characteristics of the defendant.

In addition, the court has considered the need for the

sentence imposed to reflect the seriousness of the

offense, to promote respect for the law, and to provide just punishment for the offense. To afford adequate deterrence to criminal conduct, to protect the

public from further crimes of the defendant, and to

provide the defendant with needed educational or

vocational training, medical care or other correctional treatment in the most effective manner.

In the case at bar, the court has considered the defendant’s lack of prior criminal history, his ongoing

effort to rehabilitate himself since the instant

offense, including mental health treatment, his honorable discharge from the United States Air Force,

and his enrollment in college and pursuit of a degree

in aerospace engineering. Such a sentence will adequately deter criminal conduct and protect the public

from further crimes of the defendant while also providing the defendant with an opportunity to continue

his education and participate in mental health treatment in the most effective manner.

J.A. 55-56. The AUSA noted a general objection to the sentence at the end of the hearing.

B.

As noted, Morace’s attorney and the AUSA had urged the

district court to impose a 41-month sentence, which is the

lowest point of his advisory range. Because there was no discussion on the record regarding a variance before the court

imposed sentence, it is unclear whether the parties were

UNITED STATES v. MORACE 5
expressly aware of the court’s intent to vary downward. However, the court was not required to provide the parties with

any notice of its intent to vary from the advisory range. See

Irizarry v. United States, 128 S.Ct. 2198 (2008).1

Although Morace’s probation sentence represents a 100%

decrease from the advisory sentencing range, we have recognized that describing variance probation sentences "in mathematical terms is not very helpful;" instead, "it is better to

describe the variance by considering the number of guideline

offense levels between the variance sentence of probation and

the recommended guideline range. . . ." United States v. Pyles,

482 F.3d 282, 289 (4th Cir. 2007), cert. granted and judgment

vacated, 552 U.S. 1089 (2008); see also Gall v. United States,

552 U.S. 38, 47-48 (2007) (noting that "deviations from the

Guidelines range will always appear more extreme — in percentage terms — when the range itself is low, and a sentence

of probation will always be a 100% departure regardless of

whether the Guidelines range is 1 month or 100 years").

Morace’s total offense level of 22 and criminal history category of I placed him within Zone D of the Sentencing Table.

U.S.S.G. Ch. 5, Pt. A., Sentencing Table. Under the Guidelines, probation is available only to defendants whose ranges

fall within Zone A or Zone B. U.S.S.G. § 5B1.1(a). To reach

Zone B, the district court had to vary downward by at least

12 levels. Moreover, the Guidelines authorize a sentence (like

Morace’s) of straight probation only to defendants whose

ranges fall within Zone A. Id. To reach Zone A, the district

court had to vary downward by at least 14 levels.

1After continuing the first sentencing hearing, the district court conducted a second off-the-record bench conference. See J.A. 51. We do not

suggest that these off-the-record conferences are improper. However, we

note their occurrence because it seems implicit by the fact of the continuance itself that the court was considering something other than a sentence

within the advisory range, and it is certainly possible that the court discussed with the attorneys, off the record, the fact that it was considering

a downward variance. See generally N.L.R.B. v. Honaker Mills, Div. of

Top Form Mills, Inc., 789 F.2d 262, 265 n.1 (4th Cir. 1986) (noting the

problem that off-the-record matters can present for appellate review). 

6 UNITED STATES v. MORACE
For comparison, we note that a defendant who (a) violated

§ 2252(a)(4)(B) by possessing less than 10 images (none

involving a prepubescent minor or a minor who had not

attained the age of 12 years); (b) did not use a computer; (c)

received a three-level adjustment for acceptance of responsibility; and (d) had a criminal history category of I, would have

an offense level of 15, an advisory range of 18-24 months,

and would need a five-level downward variance to reach Zone

B and a seven-level downward variance to reach Zone A.

Morace’s probation sentence for possessing 159 images

(involving prepubescent minors who appear to be under age

12) by means of a computer is thus significantly below the

advisory range for a less severe offense. 

II

Since the Supreme Court decided United States v. Booker,

543 U.S. 220 (2005), the sentencing guidelines have been

advisory, and our review of criminal sentences "is limited to

determining whether they are ‘reasonable.’" Gall, 552 U.S. at

46. We must "first ensure that the district court committed no

significant procedural error, such as failing to calculate (or

improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the [18 U.S.C.]

§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence - including an explanation for any deviation from the

Guidelines range." Id. at 51.2 If we find no significant procedural error, we must "then consider the substantive reason2Section 3553(a) instructs the district court to consider (1) offense and

offender characteristics; (2) the need for a sentence to reflect the basic

aims of sentencing (i.e., retribution, deterrence, incapacitation, and rehabilitation); (3) the sentences legally available; (4) the Sentencing Guidelines; (5) any Sentencing Commission policy statements; (6) the need to

avoid unwarranted disparities; and (7) the need for restitution. Section

3553(a) also instructs the court "to ‘impose a sentence sufficient, but not

greater than necessary, to comply with’ the basic aims of sentencing as set

out above." Rita v. United States, 551 U.S. 338, 348 (2007). 

UNITED STATES v. MORACE 7
ableness of the sentence imposed under an abuse-of-discretion

standard." Id. In doing so, we must "take into account the

totality of the circumstances, including the extent of any variance from the Guidelines range." Id.

Where, as here, the district court decides that a sentence

outside the advisory range is appropriate, it "must consider

the extent of the deviation and ensure that the justification is

sufficiently compelling to support the degree of the variance."

Id. at 50. A major departure from the advisory range "should

be supported by a more significant justification than a minor

one." Id.3 After choosing a sentence it deems appropriate, the

court "must adequately explain the chosen sentence to allow

for meaningful appellate review and to promote the perception of fair sentencing." Id. In our review of a sentence that

is outside the advisory range, we "may consider the extent of

the deviation, but must give due deference to the district

court’s decision that the § 3553(a) factors, on a whole, justify

the extent of the variance," and the fact that we "might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court."

Id. at 51.

A.

Morace’s advisory sentencing range was calculated primarily under U.S.S.G. § 2G2.2. The United States Sentencing

Commission recently noted that "[f]or the past several years,

§ 2G2.2 has had a high and increasing rate of downward

departures and below-guideline variances." U.S.S.C., The

History of the Child Pornography Guidelines, 8 (Oct. 2009).4

3Morace argues on appeal that his sentence does not represent a "major"

variance from the advisory range. Brief for Appellee, at 18. We disagree.

See United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008) (noting

that a downward variance of 40% is "major"). 

4

In fiscal years 2007 and 2008 (respectively), for offenders sentenced

under § 2G2.2, the non-government sponsored below-guideline rates were

8 UNITED STATES v. MORACE
The Commission views this trend as "a comment [by some

judges] on the perceived severity of the child pornography

guidelines," id. at 54; and it is currently conducting "a review

of the child pornography guidelines as a policy priority for the

guidelines amendment cycle ending May 1, 2010," id. at 1;

see also Felisa Cardona, Child Porn Sentences Too Severe,

Judges Say, Denver Post, Nov. 29, 2009, at A-1 ("In a nationwide series of hearings, members of the U.S. Sentencing

Commission have heard from federal judges seeking reduced

sentences for a group of defendants one would think unlikely

to get sympathy from the bench: possessors of child pornography.").

In addition to the case now before us, we have seen evidence of this trend in several post-Booker child pornography

cases. See, e.g., United States v. Smith, 275 Fed. Appx. 184

(4th Cir. 2008) (affirming a 24-month variance sentence

where the advisory range was 78-97 months); United States

v. Pauley, 511 F.3d 468 (4th Cir. 2007) (affirming a 42-month

variance sentence where the advisory range was 78-97

months); United States v. Johnson, 242 Fed. Appx. 7 (4th Cir.

2007) (vacating a 144-month variance sentence where the

advisory range was 210-262 months); United States v.

Medina, 221 Fed. Appx. 231 (4th Cir. 2007) (vacating a 12-

month plus one day downward departure sentence where the

advisory range was 41-51 months), cert. granted and judgment vacated, 552 U.S. 1089 (2008).

While recognizing this trend, the Commission has also

acknowledged the increasing emphasis that Congress has

given to child pornography cases:

27.2% and 35.7%; the government sponsored below-guideline rates were

7% and 8.5%; and the above-guideline rates were 2.4% and 2%. In contrast, for all offenders during those years, the non-government sponsored

below-guideline rates were 12% and 13.4%; the government sponsored

below-guidelines rates were 25.6% (both years); and the above-guideline

rates were 1.5% (both years). History of the Child Pornography Guidelines, at 8 n.33. 

UNITED STATES v. MORACE 9
For more than 30 years, and particularly in recent

years, Congress has focused attention on the scope

of child pornography offenses and the severity of

penalties for child pornography offenders. Through

creating new offenses, enacting new mandatory

minimums, increasing statutory maximums, and providing directives to the Commission, Congress has

repeatedly expressed its will regarding appropriate

penalties for child pornography offenders.

History of the Child Pornography Guidelines, at 6. Likewise,

we noted this congressional emphasis in United States v.

Hecht when we stated that "district courts, in the course of

selecting an appropriate sentence, ought to give respectful

attention to Congress’ view that [child pornography crimes]

are serious offenses deserving serious sanctions." 470 F.3d

177, 182 (4th Cir. 2006) (quoting United States v. Grigg, 442

F.3d 560, 564-65 (7th Cir. 2006)); see also United States v.

Mento, 231 F.3d 912, 915 (4th Cir. 2000) ("Since 1977, Congress has attempted to eliminate child pornography."), cert.

granted and judgment vacated, 535 U.S. 1014 (2002); Johnson, 242 Fed. Appx. at 11 (noting "Congress’ policy judgment

— embodied in § 3553(b)(2)(A)(ii) — that child pornography

crimes are grave offenses warranting significant sentences").5

B.

At oral argument, the government conceded that a downward variance in this case is not improper per se and that,

generally speaking, a downward variance to probation in a

child pornography case could be reasonable under certain circumstances. Cf. Rita, 551 U.S. at 355 ("Even the Government

concedes that appellate courts may not presume that every

variance from the advisory Guidelines is unreasonable.").

5As we explain later, in Hecht we held that Congress’ attempt to limit

sentencing discretion in child pornography cases by enacting 18 U.S.C.

§ 3553(b)(2)(A) is invalid under the Booker rationale. 

10 UNITED STATES v. MORACE
However, the government contends that Morace’s probation

sentence is unreasonable because the district court (1) "failed

to identify reasons that were sufficiently compelling to support the degree of the variance" and (2) "gave great emphasis

to a single factor — Morace’s wholly ordinary history and circumstances — and failed to give adequate consideration to

other factors that were critically important to the sentencing

decision." Brief of the United States, at 8. The government

identifies three factors that it contends were overlooked by the

court:

(1) "the fact that, as a matter of congressional policy,

downward deviations . . . are disfavored in child pornography cases;"

(2) "the grievous harm caused to children who are

sexually exploited in the production of child pornography, and Morace’s role as a consumer who created

a demand for that product;" and

(3) "the Sentencing Commission’s policy statement

recommending a life term of supervised release for

persons convicted of child pornography crimes."

Id. at 8-9. Presumably, because the parties agreed at the first

sentencing hearing that a 41-month sentence is appropriate,

and because the district court varied downward to probation

at the second sentencing hearing without any apparent notice,

the government did not emphasize these factors below.6

6Two procedural matters are worthy of note. First, although the government did not specifically assert these sentencing factors below, we find its

request for a within-guidelines sentence and its objection at the end of the

second hearing sufficient under the circumstances of this case to preserve

these issues for appellate purposes. See, e.g., United States v. Lynn, 2010

Westlaw 322176 (4th Cir. Jan. 28, 2010); United States v. Curry, 461 F.3d

452, 459 (4th Cir. 2006). Second, in the plea agreement, Morace waived

his right to appeal "whatever sentence is imposed" except a sentence that

UNITED STATES v. MORACE 11
We have not yet addressed a child pornography sentence

involving a downward variance to probation. Other circuit

courts have done so and for various reasons have reached differing conclusions regarding the reasonableness of those sentences. See, e.g., United States v. Lychock, 578 F.3d 214 (3d

Cir. 2009) (vacating the probation sentence where the advisory range was 30-37 months); United States v. Autery, 555

F.3d 864 (9th Cir. 2009) (affirming the probation sentence

where the advisory range was 41-51 months); United States

v. Duhon, 541 F.3d 391 (5th Cir. 2008) (affirming the probation sentence where the advisory range was 15-21 months);

United States v. Pugh, 515 F.3d 1179 (11th Cir. 2008) (vacating the probation sentence where the advisory range was 97-

120 months).

However, we have considered the reasonableness of downward variances to probation in several cases involving crimes

other than child pornography. See, e.g., United States v.

Engle, 2010 Westlaw 114944 (4th Cir. Jan. 13, 2010) (vacating the probation sentence for tax evasion where the advisory

range was 24-30 months); United States v. Carter, 564 F.3d

325 (4th Cir. 2009) (vacating the probation sentence for felonin-possession of a firearm where the advisory range was 37-

46 months); Pyles (vacating the probation sentence for aiding

and abetting drug distribution where the advisory range was

63-78 months); United States v. Hampton, 441 F.3d 284 (4th

Cir. 2006) (vacating the probation sentence for felon-inpossession of a firearm where the advisory range was 57-71

exceeds the sentencing guidelines range, but the government expressly

preserved its appellate rights. Although there appears to be an open question concerning the government’s right to appeal in this circumstance, see

United States v. Cohen, 459 F.3d 490, 495 n.2 (4th Cir. 2006); United

States v. Guevara, 941 F.2d 1299, 1299-1300 (4th Cir. 1991), Morace

does not argue that the government should be precluded from pursuing

this appeal, and we therefore need not decide the question, see United

States v. Brock, 211 F.3d 88, 90 n.1 (4th Cir. 2000) (declining to consider

appeal waiver sua sponte). 

12 UNITED STATES v. MORACE
months); see also Gall (upholding the probation sentence for

drug conspiracy where the advisory range was 30-37 months).

C.

Because of its relative similarity to this case, we find Engle

to be particularly instructive. In Engle, the defendant pled

guilty to tax evasion and had a total tax liability (with penalties and interest) of over $2,000,000. The district court calculated the defendant’s advisory range to be 24-30 months. At

sentencing, the government argued for a sentence within the

advisory range, pointing out that this was an egregious case

and that incarceration was warranted to provide adequate

deterrence. The court rejected the government’s argument,

ultimately concluding that a four-year probation sentence,

with 18 months of house arrest, was appropriate in order to

permit the defendant to attempt to earn income to pay his tax

liability. The government appealed the sentence, arguing that

it was unreasonable because it was "inconsistent with the policy considerations underlying prosecutions for income tax

evasion" and because the defendant’s "earning potential was

not a sufficient reason to decline to impose a sentence of

imprisonment as recommended by the Guidelines." 2010

Westlaw 114944, at *3. We agreed and vacated the sentence.

In doing so, we first noted that "the policy statements

issued by the Sentencing Commission make it clear that the

Commission views tax evasion as a serious crime and

believes that, under the pre-Guidelines practice, too many

probationary sentences were imposed for tax crimes." Id. at

*5. We further noted that "the policy statements also reflect

the Commission’s view that general deterrence — that is,

deterring those other than the defendant from committing the

crime — should be a primary consideration when sentencing

in tax cases," and that "there must be a real risk of actual

incarceration for the Guidelines to have a significant deterrent

effect in tax evasion cases." Id.

UNITED STATES v. MORACE 13
We found, however, that the district court "made no mention of these specific policy statements, nor did the court more

broadly acknowledge the general principles underlying the

Guidelines’ approach to sentencing for serious economic

crimes like tax evasion." Id. at *6. We then explained:

We recognize that in the post-Booker sentencing

world, district courts must give due consideration to

relevant policy statements, but those policy statements are no more binding than any other part of the

Guidelines. Accordingly, district courts may "vary

from Guidelines ranges based solely on policy considerations, including disagreements with the Guidelines." United States v. Kimbrough, 552 U.S. 85, 101

(2007) (internal quotation marks and alteration omitted). Nonetheless, when a non-Guidelines sentence

runs directly counter to the Commission’s position,

either because the district court has erroneously

applied the departure provisions or because it has

determined in a "mine-run case" that the Guidelines

range fails to reflect the § 3553(a) factors, closer

review may be in order.

Engle, at *6 (emphasis added, citations and internal punctuation omitted).

We deemed the sentence to be one that merited "closer

review," but we found the record to be "insufficient to permit

even the routine review for procedural reasonableness

required in cases involving an outside-the-Guidelines sentence." Id.7

 We noted that although the facts of the case

"could perhaps be viewed as warranting an above-Guidelines

sentence, the district court imposed a significantly belowGuidelines sentence, based on views that are at odds with the

7As we noted in Engle, the argument that a district court failed to consider all of the § 3553(a) factors is properly viewed as challenging the procedural reasonableness of the sentence. Engle, at *4 n.1. 

14 UNITED STATES v. MORACE
clearly expressed policy views of the Sentencing Commission." Id. However, the court "did not acknowledge the policy

statements, and there [was] nothing in the statements made by

the court during sentencing that offer[ed] any insight into why

the court believed that a prison term was not required." Id.

(emphasis in original). We concluded: "Under these circumstances, we cannot determine whether the sentence is reasonable without a fuller explanation of the reasoning behind the

district court’s view that a term of imprisonment as recommended by the Guidelines was not warranted and why restitution alone would provide adequate deterrence in this case." Id.

at *7. For that reason, we vacated the sentence and remanded

the case for a new sentencing.8

D.

We find Engle to be materially indistinguishable from the

case before us. Here, as in Engle, the district court was presented with a "mine run" defendant.9

 This fact is illustrated

not only by Morace’s counsel’s request that he be sentenced

within the advisory range, but also by the court’s list of fairly

commonplace reasons for imposing the probation sentence.

For example, the court noted that Morace has no prior criminal history; however, that fact is taken into account in the

advisory sentencing range calculation, and it simply places

him within the "heartland" of persons convicted for possessing child pornography. See, e.g., Lychock, 578 F.3d at 220

(discussing typical offender characteristics). The court also

8Additionally, we held that the sentence in Engle was substantively

unreasonable because it was based solely on the defendant’s ability to pay

restitution. 

9

In Engle, we stated that we were being "generous" in describing the

defendant’s status as "mine run" in light of his conduct, which we noted

could possibly have warranted an upward variance. 2010 Westlaw

114944, at *6. Although nothing in the record suggests that Morace should

receive an upward variance, his advisory sentencing range of 41-51

months is higher than the range in Engle, and his probation sentence represents a larger downward variance. 

UNITED STATES v. MORACE 15
listed Morace’s honorable discharge from the military, his

effort at rehabilitation, and his enrollment in college as additional sentencing factors. Although each of these circumstances is commendable, there is nothing unusual about them.

Given the seemingly common circumstances of this case, we

hold that the court erred by failing to provide an adequate

explanation of why a term of imprisonment is not warranted

in light of applicable policy statements.

We have noted above that for over three decades Congress

has legislated against child pornography. As one example, in

2003, Congress enacted the "PROTECT Act," which "included certain mandatory sentencing provisions applicable to

child and sexual offenses, including possession of child pornography." Hecht, 470 F.3d at 180. The PROTECT Act constitutes "ample evidence of Congress’s intent that offenses

involving child pornography be treated severely," United

States v. Goff, 501 F.3d 250, 258 n.13 (3d Cir. 2007), and one

provision in particular, 18 U.S.C. § 3553(b)(2), was designed

to reduce below-guideline sentences for child pornography

offenses (including possession) by permitting sentencing

courts to depart below guideline ranges in very limited circumstances. Although we held in Hecht that § 3553(b)(2)(A)

is invalid under the Booker rationale, we nonetheless

instructed that "district courts, in the course of selecting an

appropriate sentence, ought to give respectful attention to

Congress’ view that [child pornography crimes] are serious

offenses deserving serious sanctions." 470 F.3d at 182 (quoting Grigg, 442 F.3d at 564-65). However, we find no indication in the record that the district court followed our

instruction and considered this statement of congressional

policy in choosing to sentence Morace to probation. See Johnson, 242 Fed. Appx. at 12 ("We see no record evidence that

the district judge considered Congress’ policy judgment concerning child pornography offenses in granting a variance.").

Moreover, Morace’s probation sentence also runs counter

to the Sentencing Commission’s policy statement, expressed

16 UNITED STATES v. MORACE
in U.S.S.G. § 5D1.2(b), that recommends a lifetime term of

supervised release for sex offenders. As noted, the maximum

statutorily authorized term of supervised release for Morace

is life. 18 U.S.C. § 3583(k). Read together with § 3583(k), the

§ 5D1.2(b) policy statement "reflects the judgment of Congress and the Sentencing Commission that a lifetime term of

supervised release is appropriate for sex offenders in order to

protect the public." United States v. Daniels, 541 F.3d 915,

923 (9th Cir. 2008). Because Morace was sentenced to probation rather than a term of imprisonment, he is not eligible for

any supervised release, much less a lifetime term. See 18

U.S.C. § 3583(a).10 Again, the district court failed to explain

Morace’s probation sentence in light of this policy statement.

E.

In short, the district court was presented with what appears

to be a fairly common child pornography possession defendant. Both Morace and the AUSA agreed and argued that a

41-month sentence, which is within the advisory range, would

be appropriate. However, without any request for, or prior onthe-record discussion of, a variance of any kind, the court

imposed the most extreme downward variance possible: probation.11 In doing so, the court merely stated that it had considered the various § 3553(a) factors, but it offered no specific

10Without commenting on the propriety of such a sentence, we note that

some district courts have begun sentencing defendants convicted of possessing child pornography to one day of incarceration followed by a term

of supervised release. See, e.g., United States v. Camiscione, 2010

Westlaw 98947 (6th Cir. Jan. 13, 2010) (finding the sentence to be substantively unreasonable); United States v. Stall, 581 F.3d 276 (6th Cir.

2009) (affirming the sentence). 

11As we have noted, the district court was not obligated to provide the

parties with notice of its intent to vary downward. However, "[s]ound

practice dictates that judges in all cases should make sure that the information provided to the parties in advance of the hearing, and in the hearing

itself, has given them an adequate opportunity to confront and debate the

relevant issues." Irizarry, 128 S.Ct. at 2203. 

UNITED STATES v. MORACE 17
explanation as to how this sentence comports with those factors.

Based on this record, "we cannot determine whether the

sentence is reasonable without a fuller explanation of the reasoning behind the district court’s view that a term of imprisonment as recommended by the Guidelines [and suggested by

Congress] was not warranted." Engle, at *7. Accordingly, we

vacate the sentence and remand for a new sentencing hearing

to be conducted consistent with this opinion. We express no

view on the ultimate reasonableness of, or the extent of, a

downward variance in this case. See Gall, 552 U.S. at 59 (noting that "it is not for the Court of Appeals to decide de novo

whether the justification for a variance is sufficient or the sentence reasonable").

III

For the foregoing reasons, we vacate the sentence and

remand for further proceedings consistent with this opinion.

VACATED AND REMANDED

18 UNITED STATES v. MORACE