UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. DALE ILGEN, Defendant - Appellant. No. 10-1116 (D.C. No. 1:08-CR -00258-JLK-1) (D. Colo.)

ORDER AND JUDGMENT *

Before BRISCOE , Chief Circuit Judge, EBEL , and O'BRIEN , Circuit Judges.
Dale Ilgen pled guilty to po ssession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). He was sentenced to 78 months imprisonment, the bottom of the guideline range. He appeals from that sentence, claiming it is substantively unreasonable. We affirm.

* This order and judgment is an unpublis hed decision, not binding precedent. 10th Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1. It is appropriate as it relates to law of th e case, issue preclusion and claim preclusion. Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A). Citation to an order and judgment must be accompanied by an appropriate parenthetical notation

B (unpublished). Id

. FILED United States Court of Appeals Tenth Circuit 

### March 25, 2011
Elisabeth A. Shumaker Clerk of Court- 2 - I. FACTUAL BACKGROUND On July 31, 2007, a fede ral agent, using a computer program called Limewire, 1
discovered a file available for download cont aining the text “shx kid” (which is text known to be associated with child pornography) on a computer assigned the Internet Protocol (IP) address of 75.166.30.3. Up on further investigation, he learned the computer had 489 files with filenames de scribing child pornogr aphy available for download. He downloaded eleven of these files; ten of them contained child pornography. He eventually tr aced the IP address to Ilgen and his residence in Parker, Colorado. On December 19, 2007 , agents executed a search warrant at Ilgen’s residence. They seized a computer containing 1,627 im ages and twenty-three videos of child pornography. Some of the images show pr epubescent children bein g sexually penetrated (orally, anally and vaginally) by adults; othe r images depict a nude prepubescent female tied and bound. The images a nd videos were sent to the National Center for Missing and Exploited Children, which id entified 324 images and four videos as being from a “known” series, i.e. , child pornography in which th e victim has been identified. Agents interviewed Ilgen on the day they executed the search warrant. In his plea agreement, he admitted he made the following statements to the agents: (1) he owned the computer; (2) he lived alone and was the only one who had access to the computer; (3) he had made files available for sharing and underst ood others could access these files; (4) he

1 Limewire is a software program which a llows a computer to directly connect to other computers and access files on them.- 3 - used the Internet, in particular Limewire , to search for, acce ss and download child pornography; and (5) he had approximately 1,000 pictures and te n videos of child pornography on his computer the day it was seized. According to the agents’ notes, Ilgen also told them he had purchased a membersh ip to a child pornography website at $9.99 per month in June or July 2007. He said he downloaded material from that site on to his computer and sometimes placed it on a compact disc (CD). He had also subscribed to another child pornography website in March 2 007 at $29.99 per month; he cancelled that membership in June or July 2007. He stated he viewed both male and female pornography but preferred viewing fema les between the ages of 4 and 25. Ilgen was arrested on June 19, 2008. In his post-arrest interview, he again explained he used Limewire to download child pornography. While he initially used it to download music, he ev entually searched for “teenage gi rls” and child pornography “came up.” (R. Vol. 4 at 18.) He admitted he ha d about 1,000 images and ten videos of child pornography on his computer when it was se ized and he was awar e these items were accessible to others usi ng Limewire. He also said the yo ungest victims in his collection of child pornography were “arou nd 4 to 5 years of age.” ( Id. at 19.) He described the period during which he was downloading child pornography as the “deepest darkest hole” he had ever been in and he would “ not go back to th at hole again.” ( Id. at 18.) He said he was not sure why he downloaded such a large amount of child pornography as it was not a fantasy for him. He admitted, howe ver, to masturbating while looking at child pornography. A week later Ilgen was released on bo nd under the supervision of Pretrial- 4 - Services. Among other cond itions, Ilgen was ordered to (1) participate in a home detention electronic monitoring program, (2) not access or subscribe to the Internet, (3) not possess or view child pornography, and (4) have no unsupervised contact with minors, including his minor daughter. He complied with all conditions. II. PROCEDURAL BACKGROUND A. Indictment and Plea Ilgen was indicted with transporting (Count 1), distributing (Count 2) and possessing (Count 3) child po rnography. He entered into a plea agreement with the government, agreeing to plead guilty to Co unt 3 in exchange for the government’s dismissal of the remaining counts. The district court accepted Il gen’s guilty plea. During th e change of plea hearing, however, Ilgen displayed a noticeable tremor. The court called it to the attention of the attorneys and informed them it wanted a complete understa nding of it prior to sentencing. It said it was “not going to send a debilitated individual to the mercies of the Bureau of Prisons” and wanted the parties to look into alternativ es to prison. (R. Vol. 2 at 20.) The court referred the parties to its previous decision in United States v. Rausch , wherein the court sentenced the defendant (also charged with possession of child pornography) to home confinement because he ne eded a kidney transplant a nd it did not feel he would receive one if imprisoned. 570 F. Supp. 2d 1295 (D. Co lo. 2008). The court also expressed that it would not act as a mere “rubber stamp” of the guidelines: “I don’t frankly give a goddamn what the Guidelines sa y because they treat—all cats are black as far as they’re concerned. There aren’t any gray ones. . . . [The y have] turned human- 5 - judgment into a mechanical judgment . . . . I won’t do it.” (R. Vol. 2 at 22-23.)
B. Ilgen’s Mental Evaluations Ilgen began therapy with Craig Davi d Lounsbrough, a licensed professional counselor, in July 2008. Lounsbrough diagnosed Ilgen with anxiety and depression. He opined: [F]rom a clinical perspective[,] inca rceration would clear ly not appear in the patient’s best interest and would likely not provide [him] the appropriate resources that he appears to require in order to deal with the above listed diagnostic issues. Additio nally, such a course of action would likely not serve society and the larger public as the testing data indicates that the patient does not present as a threat nor do his diagnostic issues suggest the likelihood of an y future threat. Finally, given the severity of the patient’s diagnostic issues, incarceration will likely result in exacerbation of the patient’s depressi on and anxiety, potentially creating major mental health is sues for the patient. (R. Vol. 1 at 76.) In May 2009, Ilgen underwent a psychiat ric evaluation conducted by Dr. Karen Fukutaki. Ilgen told Fukutaki he began us ing Limewire to download music but typed “adult porn” into the search engi ne because he was “just curiou s.” (R. Vol. I at 65.) He said that led to him downloading child and a dult pornography but “[ i]t was [a] game to see if I could download more than someone else . . . .” ( Id. ) When asked whether he viewed the child pornography, he said he saw only one or two images. He said the images disturbed him and he was outraged that anyone could have produced such material. He denied being sexually stimulated by the ch ild pornography and knowing it was illegal to download and share child pornograp hy. Noting that these statements conflicted with his previous statements to the agents, Fukutaki report ed: “[I]t . . . appears- 6 - he minimized his behavior in his report to me.” ( Id. at 71.) In the end, Fukutaki diagnosed Ilgen with depression which, combin ed with Ilgen’s low self-esteem and social isolation, “probably contributed to his making a poor choice to download child pornography.” ( Id. ) She said he would benefit from treatment. While Lounsbrough had opin ed that Ilgen was not a threat to the public or predisposed to harming children, the gove rnment was concerned with this opinion because Lounsbrough was not an evaluator approved by the Co lorado Sex Offender Management Board (SOMB) a nd had not utilized testing de signed to evaluate sexual deviancy. Therefore, the government file d a motion requesting Il gen be ordered to undergo a sex offense-specific evaluation by an SOMB-approved evaluator. The court granted the motion. Ilgen underwent that evaluation with John Davis, who heard a similar story as that told to Fukutaki. When asked to explain th e contradictory statements he made to the agents, Ilgen claimed he had told them he had viewed and subscribed to adult pornography websites. He also denied ever masturbating while viewing child pornography. Nevertheless, he was sorry for downloading child pornography and making it available to others. He did not believe he needed treatment in relation to his offense and claimed he would never do it again. After performing a number of tests, Da vis determined Ilgen’s risk of sexual reoffense was “low to low moderate.” (R. Vo l. 5 at 116.) But the risk assessment was made “without objective verificati on of self-reported sexual hi story information . . . .” ( Id. at 114.)- 7 - C. Ilgen’s Physical Condition Ilgen has a history of a tremor. In July 2008, he began seei ng Dr. John Willard for anxiety, depression and an incr ease in his tremor. Willard opined Ilgen would “have an extremely difficult time” in prison and prison wo uld detrimentally affect Ilgen’s physical and mental well-being. (R. Vol. I at 117.) Willard referred Ilgen to Dr. Jeff Tam Sing, a neurologist, concerning the tremor. Because Sing found no medical reason for the tremor, he diagnosed Ilgen with conversion disorder, a kind of hysterical ne urosis in which emotional conflicts are repressed and converted into symptoms of illness.
D. Presentence Report A Presentence Report (PSR) was prepared. The probation officer determined the base offense level was 18. See USSG §2G2.2(a)(1). She re commended the base offense level be enhanced by (1) two levels because the offense involved images of prepubescent minors who had not attained the age of 12, see USSG §2G2.2(b)(2); (2) four levels because the offense involved ma terial portraying sadistic or masochistic conduct or other depictions of violence, see USSG §2G2.2(b)(4); (3) two levels because the offense involved the use of a computer, see USSG §2G2.2(b)(6) and (4) five levels because the offense involved 600 or more images, see USSG §2G2.2(b)(7)(D). These enhancements resulted in an adjusted offense level of 31. After applying a three-level downward adjustment for acceptance of re sponsibility, the total offense level was 28. Because Ilgen had no criminal history, his Criminal Histor y Category was I. Based on a total offense level of 28 and a Criminal Hi story Category of I, the proba tion officer determined the- 8 - advisory guideline range was 78 to 97 months imprisonment. Attached to the PSR were (1 ) letters of support from Ilgen’s parents, his sister and two uncles, several members of his church, 2 and a personal friend, as well as Ilgen’s own statement; (2) Victim Impact Statements (VIS ) from several of the victims portrayed in the pornography found in Ilge n’s possession and their families; 3 and (3) reports from Lounsbrough, Fukutaki, Davis, Willard and Sing outlining their findings and opinions.
E. Ilgen’s Objections to the PSR and Motion for Downward Variance Ilgen objected to the PSR. Relevant he re, he denied telling the arresting agents that he had purchased memberships to child pornography websites; he claimed he told them he had subscribed to adult pornography websites. He also denied telling them he had masturbated while view ing child pornography. Ilgen also filed a motion for a downward variance to probation under 18 U.S.C. § 3553(a). 4 He said a variance from the advisory guideline range was warranted because that range resulted from USSG §2G2.2, which Ilgen argued was not entitled to deference because it was not the product of empirical st udy and expert analysis by the United States Sentencing Commission but rather “Congressional hy steria.” (R. Vol. 1 at 49.) He also

2 Ilgen’s pastor also testified on his beha lf at sentencing, explaining the progress he had made in his counseling sessions with her and his volunteer work at the church.

3 The VIS were obtained from the Child E xploitation and Obscenity Section of the Executive Office of the United States Attorneys, which is a national repository for VIS from known victims.

4 Ilgen also filed a motion for a downwa rd departure under USSG §§5K2.13 and 5H1.3, based on his diminished capacity an d mental health as reported by Lounsbrough and Fukutaki. The court denied the motion; Ilgen has not appealed from that denial.- 9 - maintained a downward variance to proba tion was appropriate under the § 3353(a) factors. With regard to the nature and circum stances of the offense, Ilgen said: For at least one year and possibly longe r, [Ilgen], in the privacy of his small condominium, used a single computer to download[] ch ild pornography. He never chatted with an yone on the internet re garding the images he possessed, never used the material to entice a child, nor did he produce, distribute, or trade any of the images. Mr. Ilgen has never had inappropriate contact with a child. (R. Vol. I at 54-55.) As to the history and characteristics of the defendant, he emphasized he was a doting father, had worked for thirty years at the same comp any (until he lost his job due to his arrest) and had no criminal history. He also pointed to the fact he suffers from a tremor that worsens with stress and D r. Willard’s concern that incarceration would negatively affect his health and well-being. Finally, Ilgen argued a sentence of prob ation would satisfy the need for the sentence imposed to reflect the seriousness of the offense, promote respect for the law and to provide just punishme nt, afford adequate deterrence and protect the public. He emphasized that “[p]robation is not a free ride;” probationers are required to follow special conditions, conditions he is alrea dy required to follow and to which he has complied. (R. Vol. I at 57.) He also poi nted to his strong support network which included his family, his therapis ts and the members of his church. Ilgen further claimed he was not a threat to the public as th ere was no evidence he is psychologically predisposed to harming a child. 5

5 Ilgen supplemented his motion for a varian ce with an affidavit from Phillip Wise,- 10 - F. Government’s Response to Ilgen’ s Motion for Downward Variance The government opposed Il gen’s motion for a variance and requested a sentence within the guideline range. It said Congress condu cted extensive res earch and involved the Sentencing Commission when it fashioned §2G2.2. The government also argued the § 3553(a) factors did not warrant a variance. Ilgen’s offense involved a large number of photographs and videos which depicted prepubescent childre n being sexually penetrated by adults and tied and bound; he also made these items availa ble to others. And despite Ilgen’s attempts to characterize his offense as “victimless,” it was fa r from it. (R. Vol. 1 at 138.) Indeed, he had 324 images and fo ur videos with known victims. The VIS demonstrate the horror of the victims’ abuse a nd the pain they and th eir families continue to suffer due in large part to the fact the abuse continues to be viewed by individuals, like Ilgen, for their own personal gratification. As to the history and characteristics of the defendant, the government argued there was no medical cause for Ilgen’s tremor and th erefore no apparent treatment for it. While Ilgen claims to have suffered from the trem or prior to his arrest, he never sought treatment for it and it did not appear to have impacted his ability to work or to perform

former Assistant Director of the Federal Bu reau of Prisons (BOP). Wise opined: (1) because Ilgen’s anti-anxiety and anti-depre ssion medications are not available through the BOP’s national formulary of approved prescriptions medi cations, they will likely be changed or discontinued while he is in prison; (2) due to the nature of Ilgen’s offense, it is likely he will be vulnerable to threats fro m other inmates; and (3) the common stressors of incarceration—such as disturbed sleep, no ise, crowding and interaction with more aggressive inmates—may exacerbate Ilgen’s mental and physical impairments. The government rebutted these opinions at sent encing with the testimony of Shon Michael Kuta, a twenty-one year veteran of the BOP.- 11 - daily tasks. And there was no evidence the tremor had become debilitating or otherwise affected his ability to function; its worsening was obviously due to stress from this case. The government also claimed Ilgen’s depr ession and anxiety should not preclude a sentence of imprisonment. These conditions did not arise until after execution of the search warrant at his residence. Therefore, they did not appear to be chronic but rather rationally related to his arrest and conviction. According to the government, a sent ence of probation would undermine the seriousness of the offense, esp ecially given Ilgen’s failure to accept full responsibility for his actions or the impact they have had on others; indeed, he had retracted the confession he made to the agents. This lack of insight places the community at risk and requires incarceration. Moreover, a sentence of pr obation would not act as a deterrent—the lighter the punishment for possessing child pornography, the greater the customer demand for it, which in turn leads to more being produced.
G. Sentencing The district court overruled Il gen’s objections to the PSR. It then turned to the PSR’s guideline calculations. It said the child pornography guidelines “are in a deplorable state.” (R. Vol. 3 at 115.) It also criticized the guid elines in general for failing to consider each defendant separately and turning the sentencing process into a “mechanistic exercise” of trying “to pound square pegs into round holes.” ( Id. at 116.) Nevertheless, the court determined the gu ideline range, which had been properly calculated in the PSR, provided for a just se ntence in this case. Therefore, the court denied Ilgen’s motion for a downward variance.- 12 - The court then analyzed the § 3553(a) fa ctors. It determined the nature and circumstances of the offense required a seve re sentence: “[T]his is a horrible crime, many, many victims, most of whom are never going to appear in court but are going to carry with them the dehumaniza tion that this kind of perver sion has inflicted upon them.” (R. Vol. 3 at 117.) As to the history and characteristics of the de fendant, the court said Ilgen needed treatment for a significant pe riod of time and that treatment could be provided by the prison. The court also determined a severe sentence was necessary in order for the sentence to reflect the seriousness of the offense. It pointed to the fact the offense conduct (1) had continued over a period time 6 and (2) involved participation and distribution, not just voyeurism or passivity . While the court was not persuaded that punishment had any deterrent effect on others, it did believe it had a deterrent effect on the defendant being sentenced—at least for th e period of time they are in prison. In the end, the court sentenced Ilgen to 78 months imprisonment, the bottom of the guideline range. In closing, it made the following remarks: Mr. Ilgen has stated in a letter to me that he now recogni zes the wrongs he has done and that he has learned a valu able lesson, that he has already been deprived of opportun ities to share basic a nd fundamental human experiences with his family and that he will never again commit the crime for which he has been convicted beca use he values those experiences so highly and . . . does not want to continue losing them. I accept this representation. And I hope that Mr. Ilgen never again engages in this despicable behavior.

6 In its allocution at sentencing, the gove rnment noted agents had found a stack of CDs containing child pornography in Ilgen’s living room. Two of the CDs were created as early as November 2003 and February 2004; two other CDs were created in 2005.- 13 - I am up to a point willing to grant that under more favorable circumstances, it is highly unlikely that he would ev er have come before a court as a convicted criminal. I am willing to a po int to grant that he is not a hardcore criminal who is usually indiffer ent to the plights and sufferings of others. For the sake of argument, I will assume that it was nothing more than misfortune that made him a willi ng participant in th e moral muck of child pornography. There still remains the unalterable fact that he carried out and actively supported an illegal industry that treats children like so much garbage, and it is not a nursery that our society is willing to accept. Just as Mr. Ilgen supported and carried out the policy an d practice of victimizing children for perverted satisfaction, I will supp ort and carry out society’s strong determination that he does not deserv e to be free to live among us without paying the price for his criminal conduct. This is the . . . determinative reason . . . why I am sentencing Mr. Ilgen to prison. (R. Vol. 3 at 124-25.) III. STANDARD OF REVIEW We review sentences for reasonableness. United States v. Alapizco-Valenzuela , 546 F.3d 1208, 1214 (10th Cir. 2008). R easonableness review consists of both a procedural and a substantive component. Id. “The procedural component focuses on the manner in which the sentence was calculated, and the substantive component concerns the length of the sentence actually imposed.” United States v. Masek , 588 F.3d 1283, 1290 (10th Cir. 2009) (quota tions omitted). Ilgen does not dispute the procedural reasonableness of his sentence; his claim is limited to substantive reasonableness. “We review sentences for substantive reas onableness under an abuse-of-discretion standard.” United States v. Middagh , 594 F.3d 1291, 1294 (10th Cir. 2010). “A district court abuses its discretion wh en it renders a judgment that is arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v. Muñoz-Nava , 524 F.3d 1137,- 14 - 1146 (10th Cir. 2008) (quotatio ns omitted). We must determ ine “whether the length of the sentence is reasonable given all the circumstan ces of the case in light of the factors set forth in 18 U.S.C. § 3553(a).” Alapizco-Valenzuela , 546 F.3d at 1215 (quotations omitted). In doing so, “[w]e may not examine the weight a district court assigns to various § 3553(a) factors, and its ultimate as sessment of the balance between them, as a legal conclusion to be reviewed de novo. Instead, we must give due deference to the district court’s decision that the § 3553(a ) factors, on a whole, justify the [sentence imposed].” United States v. Smart , 518 F.3d 800, 808 (10t h Cir. 2008) (quotations omitted). IV. DISCUSSION Ilgen complains his sentence is substan tively unreasonable for several reasons. First, he says the court’s determinative re ason for the sentence—society’s determination that child pornography crimes require seve re punishment—would ap ply equally to any person convicted of a child pornography offense. Therefore, the sentence does not reflect an individualized sentencing process as required by § 3553(a) and precedent. See Gall v. United States , 552 U.S. 38, 50 (2007) (stating sent encing courts may not presume the guideline range is reasonable but rather “must make an individualized assessment based on the facts presented”). Moreover, the question is not whether society has determined punishment is necessary but rather what punishment is appropriate. He contends a lower prison sentence or probation would have seve rely punished him fo r his first and only offense. This argument is belied by the record, which clearly shows the court imposed a- 15 - sentence that it believed was appropriate under the circumstances of this case. The court ensured it had a full understanding of Ilgen’s tremor. It was also well aware of his psychological problems and his representation th at he would not reoffend. It further acknowledged it had read the numerous letters in support of Ilgen, as well as the reports from his doctors and evaluators. But indivi dualized sentencing does not mean looking only to mitigating factors; it al so requires consideration of aggravating factors, including the offense conduct. Here, the court did so and reasonably emphasized its very serious nature. Ilgen had a large number of images and videos of child pornography downloaded on his computer; some of these images and vi deos depicted horrid sexual abuse of very young children. 7 He also made these images and vi deos available to others. The court noted the long-term damage of Ilgen’s conduct to the victims. As one victim said in her VIS: “When I was told how many people had viewed these images and videos, I thought my pulse would stop. Thinking about all those sick perverts viewing my body being ravished and hurt like that makes me feel like I was raped by each and every one of them.” (R. Vol. 5 at 48.) Ilgen also objects to the court’s treatmen t of the guidelines. At the change of plea hearing and at sentencing, the court criticized the guidelines, in particular, § 2G2.2. Yet, the court sentenced Ilgen within the guideline range. He says “[t]he court’s simultaneous disdain for and adherence to . . . §2G2.2 do es not provide a reasonable basis for [the]

7 The government described in detail some of the images and videos at sentencing. The PSR and VIS provide other details. We need not repeat these descriptions here. Suffice to say, the images and videos are appalling.- 16 - sentence imposed by the court.” 8 (Appellant’s Opening B r. at 36.) We disagree. The court’s criticisms of the guidelines demonstrate its recognition that it was not bound to follow them. That be ing so, the fact it nevertheless sentenced Ilgen within the guideline range reflects its belief that the sentence resulting from the guidelines was appropriate under the circumstances of the case. In fact, as the court informed the parties, it had previously rejected the guideline range in two child pornograph y cases. But it also distinguished those cases, saying it varied in those cases “primarily because of the [need for the defendant to receive] constant medical care.” (R. Vol. 3 at 115.) Specifically, as

to Rausch , the court said it involved “exigent ci rcumstances” and neither party “should draw any conclusion from it that . . . the same sentence would be imposed in other cases.” ( Id. at 116.) Obviously, the court did not find exigent circumstances here, especially given there was no medical cause or treatment for Ilgen’s tremor. Ilgen also says his sentence is unreasona ble because the district court may have erroneously limited its sentencing discreti on to choosing between a guideline sentence

8 In the district court, Ilgen set forth extensive argument as to why §2G2.2 is not entitled to deference based on the fact it was en acted without the empirical analysis of the Sentencing Commission. He does not repeat t hose arguments on appeal, other than to say §2G2.2 is suspect and a number of courts have imposed below-guideline sentences in child pornography cases as a result. He also has submitted a Rule 28(j) letter referring us to United States v. Regan , where the defendant raised a similar argument which we determined to be “quite forceful.” 627 F.3d 1348, 1353-54 (10th Cir. 2010). Assuming he has sufficiently raised the issue, we do not find it persuasive. The district court was obviously aware of Ilge n’s argument and indeed acknowledged the “deplorable state” of §2G2.2. (R. Vol. 3 at 115.) Bu t it also obviously believed that application of that guideline resulted in a just sentence under the circumstances of the case. And, as we explain below, the fact the court could have varied downward based on its disagreement with §2G2.2 does not mean it was required to do so.- 17 - and probation (the sentence he requested in th e district court). While the court said a below guideline sentence was not appropriate , Ilgen says it is unclear (given other comments by the court) whether it was referr ing to all below-guideline sentences or merely probation. We see no error. As Ilge n acknowledges, the court said a “below the Guideline statutory sentence [was] not appropriate” in this case. (R. Vol. 3 at 116.) That obviously means all below-guid eline sentences, not just pr obation, and we decline to infer a more limited meaning. While the court made cert ain comments regarding why a prison sentence was appropriate, they were obviously made in response to Ilgen’s argument for a sentence of probation. Finally, Ilgen claims the district court did not reasonably balance the § 3553(a) factors. 9 While it determined he needed treatme nt and could receive that treatment in prison, it also acknowledged Ilgen had ma de progress in trea tment while on home detention. As to the deterrent effect, Ilgen says he was not in need of deterrence—he was 53-years-old at the time of sentencing, had no criminal record and the court accepted his statement that he would not reoffend. But, in any event, deterrence certainly did not support the lengthy sentence imposed. Ilgen also claims his 78-month sentence creates an unwarranted disparity, as th e trend in Colorado, as well as nationally, is for a below-

9 In Ilgen’s opening brief, the only § 3553(a ) factor he addresses in argument is the court’s duty to consider “the need to avoid unwarranted se ntence disparities among defendants with similar reco rds who have been found gu ilty of similar conduct.” See § 3553(a)(6). While he discusses the other fa ctors, he does so only in setting forth the arguments the parties raised in the district c ourt; he does not appear to be raising them as arguments on appeal. In his reply brief, howev er, he argues the court did not reasonably balance the § 3553(a) factors. While we do no t believe he sufficiently raised them in his opening brief, we nevertheless address them.- 18 - guideline sentence in child pornography cases. Indeed, according to Ilgen, there are a growing number of cases where probation is being imposed. He says this trend demonstrates that the guideline ranges in child pornography cases often result in a sentence greater than necessary under § 3553(a). 10 Ilgen has a tough row to hoe. Because he was sentenced w ithin the advisory guideline range, the sentence is entitled to a presumption of reasonableness. See United
States v. Lewis , 594 F.3d 1270, 1277 (10th Cir.), cert. denied , 130 S. Ct. 3441 ( 2010). Little need be said. While Ilgen can rebut th at presumption by show ing his sentence is unreasonable in light of the § 3553(a) factors, id. , he has failed to do so. The district court’s consideration of the § 3553(a) factors prim arily focused on the serious nature of the crime. “But a reas onable sentencing judge need not give equal weight to all factors. The heinous nature of the offense in itself can justify a harsh
sentence.” Id. In any event, the court also cons idered the other factors, including the history and characteristi cs of the defendant and the need for the sentence imposed to afford adequate deterrence. Ilgen criticizes the court’s balancing of these factors but we see no abuse of discretion. The fact Ilgen made progress while on hom e detention does not necessarily justify a lower prison sentence, especially when the court has determined he can continue to receive treatment while in prison. Ilgen’s clai m he is not in need of deterrence has some

10 This argument is in direct conflict with Ilgen’s claim that his sentence does not reflect an individualized sentencing proce ss—on the one hand, he seeks a sentence tailored to his individual circumstances; on the other hand, he wants a sentence following the “trend,” without regard to the unique circumstances of this case.- 19 - support in the record, in particular his lack of criminal record and Davis’ opinion that Ilgen’s risk of sexual reoffense is “low to low moderate.” (R. Vol. 5 at 116.) On the other hand, it also appears Ilgen’s criminal behavior was not ne w as he had been possessing child pornography since 2003, four years before he got caught. See supra n.6. Moreover, Davis’ risk assessment is suspect because it was based in part on Ilgen’s selfreport, which included his statements that he had not subscribed to child pornography websites and had not masturbated to child por nography. These statements are in direct conflict with his earlier st atements to the agents. The district court did not explicitly di scuss “the need to avoid unwarranted sentence disparities among defendants with simi lar records who have been found guilty of similar conduct.” See 28 U.S.C. § 3553(a)(6). However, while the court must state its reasons for imposing a certain sentence so as to allow for adequate appellate review, it need not expressly weigh on the r ecord each of the § 3553(a) factors. 11 See United States v. Jarrillo-Luna , 478 F.3d 1226, 1229 (10th Cir. 2007); see also United States v. VerdinGarcia , 516 F.3d 884, 898 (1 0th Cir. 2008) (“[A] district c ourt need not march through § 3553(a)’s sentencing factors, nor do we dema nd that the district court recite any magic words to show that it fulfilled its responsibility to be mindfu l of the factors that Congress has instructed it to consider.”) (quotations omitted). In any event, the fact other defendants charged with possession of child pornography have received below-guideline sentences (or even probation) is not necessarily relevant to determining the appropriate

11 Moreover, this is a procedural reas onableness argument and Ilgen has limited his appeal to a substantive reasonableness challenge. See Gall , 552 U.S. at 51.- 20 - sentence in this case, especially given Ilgen’ s failure to describe the circumstances of those cases to allow for adequa te comparison. To the extent this is an argument that §2G2.2 is not entitled to deference because it often results in too harsh a sentence, the court was obviously aware of that argument. But merely because a court may vary based on its belief §2G2.2 results in too harsh a sentence does not mean it is required to do so. C.f. Lewis , 625 F.3d at 1232 (“Our court has reco gnized, consistent with Supreme Court precedent, that district courts may permissi bly depart or vary downward from the crack guidelines, but they are not required to do so.”), petition for cert. filed , No. 10-8606 (January 24, 2011). An d while a court may vary from a guideline based on a disagreement with a policy decision of the Sentencing Commission, it should do so on a case-by-case basis, not merely because other courts have done so in other cases. See Pepper v. United States , -- U.S.--, 131 S. Ct. 1229, 1255 (2011) (Breyer, J., concurring) (“The appellate courts should review . . . decisions [to depa rt or vary from a specific guideline] more closely when they rest upon di sagreement with Guidelines policy. They should review those decisions with greater de ference when they rest upon case-specific circumstances that place the case outside a specific Guideline’s ‘heartland.’”) (citation omitted). AFFIRMED.

Entered by the Court: Terrence L. O’Brien United States Circuit Judge