United States Court of Appeals

For the First Circuit

No. 12-2047

UNITED STATES OF AMERICA,

Appellee,

v.

THOMAS KING,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Torruella, Circuit Judge,

Souter,* Associate Justice,

and Selya, Circuit Judge.

Alexandra Deal, with whom Stern, Shapiro, Weissberg & Garin,

LLP was on brief, for appellant.

Renée M. Bunker, Assistant United States Attorney, with whom

Thomas E. Delahanty II, United States Attorney, was on brief, for

appellee.

January 31, 2014

________

 * Hon. David H. Souter, Associate Justice (Ret.) of the Supreme

Court of the United States, sitting by designation.
SELYA, Circuit Judge. The federal sentencing guidelines

are designed to serve as tools to assist judges in performing one

of their most consequential tasks. They are not meant to dictate

robotic sentencing outcomes. In this single-issue appeal,

defendant-appellant Thomas King challenges his 72-month term of

immurement as substantively unreasonable. As framed, his challenge

both distorts the function of the federal sentencing guidelines and

undervalues the district court's broader appraisal of the

seriousness of the offense of conviction. After setting the record

straight, we affirm.

Inasmuch as this appeal follows a guilty plea, we draw

the factual background from the plea agreement, the change-of-plea

colloquy, the presentence investigation report (PSI Report), and

the transcript of the disposition hearing. See United States v.

Fernández-Cabrera, 625 F.3d 48, 50 (1st Cir. 2010). For present

purposes, a brief synopsis suffices.

In July of 2011, a federal grand jury sitting in the

District of Maine returned an indictment charging the defendant

with possessing a computer that held child pornography. See 18

U.S.C. § 2252A(a)(5)(B). The charge arose out of a forensic

examination of the defendant's computer, which revealed

surreptitiously recorded videos of the defendant's minor

stepdaughter masturbating in her bathroom. The defendant initially

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maintained his innocence but, within a matter of months, entered a

guilty plea.

When the PSI Report was prepared, it recommended a base

offense level of 18. It further recommended the application of a

series of enhancements: five levels for a pattern of abuse, see

USSG §2G2.2(b)(5); two levels for the use of a computer in the

commission of the offense, see id. §2G2.2(b)(6); and three levels

for possessing 150 to 300 offending images, see id.

§2G2.2(b)(7)(B).1 Assuming a three-level decrease for acceptance

of responsibility, see id. §3E1.1, the PSI Report projected the

total offense level as 25. Based on this projection and the

absence of any prior criminal history, the report suggested a

guideline sentencing range (GSR) of 57 to 71 months.

The district court convened the disposition hearing on

August 21, 2012. The defendant challenged the application of the

computer enhancement, arguing that it overstated the gravity of his

offense because it was meant to target child pornography

trafficking on the Internet (an activity in which he had not

engaged). He also challenged the number-of-images enhancement,

arguing that it unfairly lumped his small cache of videos with

larger collections of child pornography.

1

 For sentencing purposes, each video clip is deemed to

contain 75 images. See USSG §2G2.2, comment. (n.4(B)(ii)).

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The district court rejected both arguments. It explained

that the computer enhancement was not pegged to Internet use but,

rather, to computer use and therefore applied. The court further

explained that the number-of-images enhancement, though

"imperfect," applied and represented "a very rough proxy for

seriousness." Similarly, the court found the five-level

enhancement for a pattern of abuse to be warranted. And, finally,

the court disagreed with the PSI Report and discerned no

justification for an acceptance-of-responsibility discount. These

determinations produced a total offense level of 28 which, when

combined with the absence of any prior criminal record, yielded a

GSR of 78 to 97 months.

The court then heard the defendant's allocution. After

considering the statutory sentencing factors, see 18 U.S.C.

§ 3553(a), and "concentrat[ing] on the history and characteristics

of the defendant and the nature and circumstances of the offense,"

it varied downward and imposed a 72-month sentence. This timely

appeal ensued.

In this venue the defendant, represented by new counsel,

consolidates his arguments against the computer and number-ofimages enhancements. In his repackaged claim of error, he strives

to convince us that, due mainly to the combined effect of these

enhancements, his sentence is substantively unreasonable. We are

not persuaded.

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We review challenges to the reasonableness of a sentence

for abuse of discretion and proceed according to a two-step pavane. 

See Gall v. United States, 552 U.S. 38, 51 (2007). First, we

resolve any claims of procedural error. See id.; United States v.

Rodríguez, 527 F.3d 221, 224 (1st Cir. 2008). Second — and only if

the sentence passes procedural muster — we inquire whether the

sentence is substantively reasonable. See Gall, 552 U.S. at 51.

In this appeal, the defendant has not preserved any claim

of procedural error. Refined to bare essence, his lone assignment

of error reduces to a plaint that the district court's downward

variance did not go far enough, resulting in a sentence that is

substantively unreasonable.

The "linchpin" of our review for substantive

reasonableness is a determination about whether the sentence

reflects "a plausible . . . rationale and a defensible result." 

United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008). In

making this determination, considerable deference is owed to the

sentencing court; and a reviewing court cannot simply substitute

its judgment for that of the sentencing court. See id. at 92. 

Consequently, we limit our review to the question of whether the

sentence, in light of the totality of the circumstances, resides

within the expansive universe of reasonable sentences. See id.

The core of the defendant's argument is his insistence

that the computer and number-of-images enhancements

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indiscriminately sweep up conduct of widely divergent culpability,

and that sentences embodying these enhancements necessarily fail to

"guard against unwarranted similarities among sentences for

defendants who have been found guilty of dissimilar conduct." 

United States v. Dorvee, 616 F.3d 174, 187 (2d Cir. 2010). In his

view, such sentences contravene the spirit of Congress's admonition

"to avoid unwarranted sentence disparities," 18 U.S.C.

§ 3553(a)(6), and are therefore substantively unreasonable.

This argument fundamentally misapprehends the role of the

guidelines in the sentencing process. The guidelines are not

intended to fashion sentences with the precision of a Savile Row

tailor. To the contrary, they represent a "wholesale" approach to

sentencing, offering only "a rough approximation of sentences that

might achieve § 3553(a)'s objectives." Rita v. United States, 551

U.S. 338, 348, 350 (2007). As such, the guidelines are simply "the

starting point and . . . initial benchmark" for crafting a

sentence. Gall, 552 U.S. at 49.

This starting point is merely a step along the path. 

After arriving at an appropriate GSR, the court must proceed to

"make an individualized assessment based on the facts presented"

and the statutory sentencing factors in order to shape the actual

sentence. Id. at 50.

Given the function of the sentencing guidelines and the

methodology that they contemplate, a frontal assault on the

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guidelines cannot, without more, afford a persuasive basis for a

claim of sentencing disparity, much less for a claim of substantive

unreasonableness. After all, such an assault takes aim at a

fragment of an inchoate sentence, but a court's inquiry into

substantive reasonableness must examine more: "the totality of the

circumstances" surrounding the final product. Id. at 51.

By definition, such an inquiry does not allow a reviewing

court to examine guideline enhancements in isolation. Rather, a

reviewing court must account for the whole of the various integers

that comprise the sentencing calculus, including the sentencing

court's overall appraisal of the GSR, its evaluation of the

offender and the offense conduct, and its case-specific synthesis

of the statutory sentencing factors.

Seen in this light, the defendant's argument is

unsupportable. The defendant beseeches us to look at two

enhancements to the exclusion of everything else. Honoring such an

entreaty would undermine our consistent directive that sentencing

courts must refrain from adopting "a narrow focus on a particular

[sentencing] factor in isolation." Rodríguez, 527 F.3d at 228.

Appellate courts — like district courts — are not at liberty to

engage in such a faulty practice.

Sentencing requires a broader focus because "section

3553(a) is more than a laundry list of discrete sentencing factors;

it is, rather, a tapestry of factors, through which runs the thread

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of an overarching principle": that a sentencing court ought "to

'impose a sentence sufficient, but not greater than necessary' to

accomplish the goals of sentencing." Id. (quoting 18 U.S.C.

§ 3553(a)). The defendant's entreaty, which invites us to ignore

the forest and glimpse only a couple of trees, perfectly

exemplifies the folly of such a single-minded approach.2

The court below did not view the guidelines as

conclusive; instead, it appropriately treated them as a starting

point. The defendant's pedantic railings against the severity of

specific guideline enhancements overlook this reality. Those

railings likewise overlook the district court's cogent statement of

its reasoning as to why a "harsh and severe" sentence was warranted

in this instance.

The sentencing court's reasoning does not exhibit any

lockstep deference to the guidelines. Far from it: the court's

rationale recognizes that a defendant's past actions often may be

the architects of an appropriate sentencing outcome. This

rationale draws primarily upon the "appalling" nature of the

defendant's conduct. In support, the court patiently explained the

details that made the offense conduct especially reprehensible,

including the tender age of the victim, the gross invasion of

2 For much the same reasons, the defendant's forlorn attempt

to illustrate the putative unreasonableness of his sentence by

comparing his GSR with a hypothetical GSR for sexual abuse of a

minor is an exercise in futility.

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privacy associated with a surreptitious recording made in the

victim's bathroom, the defendant's deviant self-gratification

(masturbating while watching the videos), and the "betrayal of

trust" stemming from the defendant's relationship with the victim. 

This lucid explanation fully justified the sentence that the

district court imposed.

In an effort to derail this train of thought, the

defendant relies heavily on the decision in United States v.

Dorvee, 616 F.3d 174 (2d Cir. 2010). This reliance is misplaced. 

In Dorvee, the Second Circuit found a 233-month sentence

substantively unreasonable because, among other things, the

sentencing court "offered no clear reason" for the lengthy sentence

and relied unthinkingly on the guidelines in determining that the

sentence was reasonable. Id. at 184. The court below was not

guilty of any such bevues; as we have explained, it examined the

totality of the circumstances, appropriately treated the various

guideline provisions as rough proxies, fashioned a sentence that

responded to the nature and circumstances of the offense, and gave

a plausible reason for the sentence. No more was exigible.

Let us be perfectly clear. We are not unsympathetic to 

concerns about perceived harshness in the child pornography

guidelines. See, e.g., United States v. Stone, 575 F.3d 83, 97

(1st Cir. 2009). Here, however, the defendant's challenge focuses

myopically on certain guidelines to the exclusion of all else and,

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thus, fails to account for the actual reasons that support the

imposition of his sentence. Those reasons are fully sufficient to

justify the sentence imposed.

To cinch matters, the fact that a sentence falls within

a properly constructed GSR typically affords some basis for

concluding that the sentence is substantively reasonable. See

United States v. Pelletier, 469 F.3d 194, 204 (1st Cir. 2006). 

Here, the sentence actually imposed was below the bottom of a

properly constructed GSR. It is a rare below-the-range sentence

that will prove vulnerable to a defendant's claim of substantive

unreasonableness. See United States v. Floyd, ___ F.3d ___, ___

(1st Cir. 2014) [Nos. 12-2229, 12-2231, slip op. at 36]. This case

plainly falls within the general rule, not within the long-odds

exception to it.

There is one loose end. In his reply brief, the

defendant suggests for the first time that his trial counsel

rendered ineffective assistance by failing to challenge the

district court's refusal to credit him for acceptance of

responsibility. We decline to address this suggestion for two

reasons. First, arguments that make their debut in an appellant's

reply brief are ordinarily deemed waived. See United States v.

Eirby, 515 F.3d 31, 37 n.4 (1st Cir. 2008). Second — with only

limited exceptions (none of which is applicable here) — we will not

address ineffective assistance of counsel claims that are raised

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for the first time on direct review.3 See United States v.

Maldonado-García, 446 F.3d 227, 233 (1st Cir. 2006); United States

v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993).

We need go no further. For the reasons elucidated above,

we deem the defendant's sentence to be well within the universe of

condign punishment for a particularly repellent crime. The

sentence is, therefore,

Affirmed.

3 The defendant may, of course, pursue such a claim through a

petition for collateral relief under 28 U.S.C. § 2255. See United

States v. Mala, 7 F.3d 1058, 1064 (1st Cir. 1993).

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