In the

United States Court of Appeals

For the Seventh Circuit

No. 12-3154

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WILLIAM A. MARTIN,

Defendant-Appellant.

Appeal from the United States District Court 

for the Southern District of Illinois.

No. 3:11CR30206-GPM—G. Patrick Murphy, Judge.

ARGUED JANUARY 30, 2013—DECIDED MAY 28, 2013

Before MANION, ROVNER, and WOOD, Circuit Judges.

PER CURIAM. William Martin appeals his 10-year sentence for possession of child pornography. Because

the district court did not address two of Martin’s arguments in mitigation, we vacate his sentence and remand

for resentencing.

In July 2010, an undercover officer discovered that

Martin had made available on a file-sharing network

nine images and videos depicting child pornography. A
2 No. 12-3154

search of the home Martin shared with his mother uncovered hundreds more images and several videos of child

pornography on two computers in Martin’s bedroom.

Martin pleaded guilty to possessing child pornography.

18 U.S.C. § 2252(a)(4)(B). The probation officer who

prepared the presentence report (“PSR”) calculated Martin’s total offense level at 30: his base offense level was 18,

U.S.S.G. § 2G2.2(a)(1), and he received a 2-level upward

adjustment because some of the material involved prepubescent children, id. § 2G2.2(b)(2), another 2-level upward

adjustment because Martin had distributed images via

a file-sharing network, id. § 2G2.2(b)(3)(F), a 4-level increase because some of the material was violent in

nature, id. § 2G2.2(b)(4), a 2-level increase because he

used a computer, id. § 2G2.2(b)(6), a 5-level increase

because he possessed more than 600 images, id.

§ 2G2.2(b)(7)(D), and a 3-level decrease because he accepted responsibility, id. § 3E1.1. Combined with

Martin’s category III criminal history, the guidelines

yielded an imprisonment range of 121 to 151 months.

Given the ten-year statutory maximum sentence, however, Martin’s effective guidelines range was 120 months.

18 U.S.C. § 2252(b)(2); U.S.S.G. § 5G1.1(c)(1).

The PSR also described significant mental-health

issues, noting that Martin had been diagnosed with

major depressive disorder, dysthymia, alcohol and marijuana dependency, and polysubstance abuse, and had

received a “possible, but doubtful” diagnosis of bipolar

disorder. According to the PSR, Martin had also engaged in self-mutilation as a youth, had been hospital-
No. 12-3154 3

ized for mood disorders, and had attempted suicide

several times, most recently about one year before the

report was written. Martin, the PSR noted, was not receiving medication or treatment at the time of his

arrest because he could not afford it.

Martin did not object to the PSR calculations, but

he argued that he should receive a below-guidelines

sentence for several reasons. First, he argued that his

mental-health issues warranted a lower sentence because his behavior could be managed through treatment. In support of this argument, he pointed out that

he had recently begun mental-health and substanceabuse treatment and had earned his GED and completed

a cognitive-skills program and a work program. He

argued, too, that the child-pornography guidelines produce sentences longer than necessary to serve the

goals of sentencing in cases of mere possession, and

he presented articles and studies to this effect. He

further contended that given the wide availability

of child pornography, his offense resulted in little incremental harm to the children depicted in the material

he possessed. And due to a trend toward belowguidelines sentences in child-pornography cases, Martin

urged that a shorter sentence was necessary to avoid

unwarranted disparities.

The district court adopted the probation officer’s guidelines calculations and sentenced Martin to 120 months’

imprisonment. In explaining this sentence, the court

noted that it did not place much weight on deterrence

given its view that child-pornography offenders were
4 No. 12-3154

undeterrable because they “are not rational thinkers in

the first place.” Nevertheless, the court went on to highlight “specific deterrence,” along with the seriousness of the offense and the need to protect the public,

as justifying its sentence.

On appeal, Martin argues that his sentence is procedurally unreasonable because the district court ignored

his principal arguments that (1) a lengthy sentence

was unnecessary because his personal characteristics

indicate a low likelihood of recidivism, (2) the childpornography guidelines produce excessive sentences

in child-pornography possession cases, (3) his contribution to the total harm of child pornography was

negligible, and (4) a shorter sentence was necessary to

avoid disparities created by the trend toward belowguidelines sentences for child-pornography defendants.

At sentencing, a district court must consider a defendant’s principal, nonfrivolous arguments for lenience.

See United States v. Chapman, 694 F.3d 908, 913-14 (7th

Cir. 2012). We have therefore ordered resentencing

when a district court either passes over a colorable argument in silence, see United States v. Robertson, 662 F.3d

871, 879-80 (7th Cir. 2011); United States v. Villegas-Miranda,

579 F.3d 798, 801-02 (7th Cir. 2009); United States

v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005), or when

its discussion is so cursory that we cannot discern its

reasons for rejecting the argument, see United States v.

Schroeder, 536 F.3d 746, 755-56 (7th Cir. 2008); United

States v. Miranda, 505 F.3d 785, 792-93, 796 (7th Cir. 2007).

Here, the district court’s failure to address Martin’s

arguments regarding his likelihood of recidivism—
No. 12-3154 5

particularly in regard to his mental-health issues—warrants remand. Martin’s lengthy and serious mentalhealth history was detailed in the PSR, which also

noted that Martin had made significant progress

since receiving treatment for his depression. The district court was not required to accept Martin’s argument that treatment of his mental-health issues would

reduce his likelihood of reoffending, but Martin’s

position was not so lacking in merit as to warrant no

response. See United States v. Vidal, 705 F.3d 742, 744-45

(7th Cir. 2013) (remanding for resentencing where

district court failed to address defendant’s argument

that treatment of mental-health issues would render

him unlikely to reoffend); Miranda, 505 F.3d at 793

(same). And the district court’s general acknowledgment that Martin had a “very, very difficult life,” which

was “not going to get any better” does not satisfy us

that the judge appreciated that Martin was seriously ill

or considered that his poor judgment might improve

with treatment.

The district court also should have addressed Martin’s

argument that the child-pornography guidelines do not

approximate the goals of sentencing when applied to

defendants convicted only of possession who have

no history of contact offenses. In his sentencing memorandum, Martin cited studies for the general propositions that “child pornography possession offenses are

not particularly difficult to deter” and that “child pornography offenders ‘do not represent a high risk of recidivism.’ ” In light of these citations, the district court’s

statement that it had “not seen anything yet that
6 No. 12-3154

suggests that there’s adequate treatment for that” leaves

us doubtful that the court considered Martin’s argument. And although we have held that it is harmless

error for a district court to pass over a nonfrivolous

argument that a sentencing guideline is invalid, see

United States v. Aguilar-Huerta, 576 F.3d 365, 367-68 (7th

Cir. 2009) (noting that validity is an issue of law and

the argument can be made on appeal), Martin did not

argue that the child-pornography guidelines should

never be applied. Rather, he argued that they produce

disproportionately long sentences for child-pornography

possessors, like himself, with no history of contact offenses. Cf. id. (“[W]e do not think a judge is required

to consider, not a nonfrivolous argument that a guideline produces an unsound sentence in the particular

circumstances of the case, but an argument that a guideline is unworthy of application in any case because it

was promulgated without adequate deliberation.”).

For completeness, we briefly address Martin’s remaining procedural arguments. First, the district court

sufficiently explained its reasons for rejecting Martin’s

contention that he contributed only minimally to the

total harms of child pornography. Although the court

did not explicitly state that it was responding to an argument by Martin, the court discussed the seriousness of

his offense, highlighting the profound consequences on

the children involved and the fact that “society has

decided to punish that crime severely” in explaining its

decision not to impose a below-guidelines sentence.

In context, we construe these remarks as a rejection of

Martin’s attempt to minimize the seriousness of his
No. 12-3154 7

offense. See Schroeder, 536 F.3d at 755; Miranda, 505 F.3d

at 792.

Nor did the district court err in declining to address

Martin’s argument that a below-guidelines sentence

would be necessary to avoid unwarranted sentencing

disparities. This argument is squarely foreclosed by our

holding that “[a] sentence within a properly ascertained

range . . . cannot be treated as unreasonable by reference

to [§] 3553(a)(6).” United States v. Matthews, 701 F.3d 1199,

1205 (7th Cir. 2012) (quoting United States v. Boscarino,

437 F.3d 634, 638 (7th Cir. 2006)), and could therefore be

passed over in silence. See Cunningham, 429 F.3d at 678.

Martin also argues that the district court committed procedural error by sentencing him on the basis

of speculation that child-pornography offenders are

irrational and undeterrable. But although we have held

that a district court’s unfounded speculation that sex

offenders are not deterrable may necessitate remand, see

United States v. Miller, 601 F.3d 734, 739-40 (7th Cir. 2010),

we have done so only where the court imposed an

above-guidelines sentence for purposes of deterrence.

See United States v. Reibel, 688 F.3d 868, 872 (7th Cir.

2012) (“[I]mportantly, Reibel received a presumptively

reasonable within-Guidelines sentence . . . whereas the

defendant in Miller was given an above-Guidelines sentence requiring special justification.”). Moreover, although the district court expressed skepticism that sex

offenders can be deterred, it seemed to have in mind

general deterrence only, given its later statement that

“the seriousness of the offense and the question of specific
8 No. 12-3154

deterrence is all that’s at work” in its choice of sentence.

And finally, the court suggested that its views on the

efficacy of deterrence did not result in a longer sentence, explaining that it did not mean to suggest that

“there’s recidivism beyond what’s accounted for in the

guidelines.”

Accordingly, we VACATE Martin’s sentence and

REMAND for resentencing.

5-28-13