PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

____________ 

No. 09-1318 

____________ 

UNITED STATES OF AMERICA, 

 Appellant 

v. 

DAVID GROBER 

____________ 

No. 09-2120 

____________ 

UNITED STATES OF AMERICA 

v. 

DAVID GROBER, 

 Appellant 

____________ 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY 

(D.C. Crim. No. 2-06-cr-00880-001) 

District Judge: Honorable Katharine S. Hayden 

____________ 

Argued: June 29, 2010 

____________ 

Before: SLOVITER, BARRY and HARDIMAN, Circuit Judges

(Opinion Filed: October 26, 2010) 

____________ 
George S. Leone, Esq. 

Caroline A. Sadlowski, Esq. (Argued) 

Office of the United States Attorney 

970 Broad Street 

Room 700 

Newark, NJ 07102 

Counsel for Appellant/Cross-Appellee

Peter Goldberger, Esq. (Argued) 

50 Rittenhouse Place 

Ardmore, PA 19003-2276 

Counsel for Appellee/Cross-Appellant

____________ 

OPINION OF THE COURT 

____________ 

BARRY, Circuit Judge

 It is an unassailable proposition that “[c]hild pornography 

harms and debases the most defenseless of our citizens.” United 

States v. Williams, 553 U.S. 285, 307 (2008). We believe that, 

and the District Court believed that. Nonetheless, the Court was 

deeply concerned about the sentence the government said the 

Court should impose on defendant David Grober under the child 

pornography Guidelines. It recognized, on the one hand, the 

tension between a mechanical application of those Guidelines 

and the “outrageously high” sentence – indeed, the “truly 

remarkable punishment” – of 235-293 months of imprisonment 

they advised, and, on the other, a fair and reasonable sentence 

that does justice. Determined to take a long and hard look at the 

child pornography Guidelines in an effort to understand why 

Congress and the Sentencing Commission did what they did and 

whether it made sense both as an objective matter and as to the 

defendant, the Court embarked on a careful study of how the 
Guidelines range urged on it by the government came to be. It 

took evidence over twelve days, heard extensive oral argument 

and considered extensive written submissions, and rendered a 

lengthy oral opinion at sentencing and a forty-six page written 

opinion thereafter explaining in great detail how it arrived at 

what it believed to be the correct sentence for this defendant. 

All of this is to be much admired. 

 There is a flip side, however, when a district court 

devotes such an extraordinary amount of time and attention to an 

issue so clearly troubling it and so freely expresses its concerns 

on the record, reaching out for whatever might assist it in 

assuaging those concerns. The flip side is this: in the unusual 

case, such as this, in which a district court arguably does too 

much rather than too little, there is much more grist for the mill, 

as here the government points to everything the District Court 

did and did not do and everything it should and should not have 

done. After this microscopic examination – but without ever 

challenging the substantive reasonableness of the ultimate 

sentence imposed – the government has found what it describes 

as procedural error. We will affirm. 

I. Background

 In December 2005, acting on a tip from America Online 

regarding child pornography attached to emails involving David 

Grober’s account, law enforcement officers of the State of New 

Jersey executed a search warrant at Grober’s home and 

discovered what was eventually determined to be approximately 

1500 images and 200 videos of child pornography among an 

even larger collection of adult pornography. In October 2006, a 

federal grand jury returned an indictment charging Grober with 

one count of receiving and distributing child pornography and 

one count of possessing child pornography. Grober was offered 

a plea to possession only, and he declined, as he had also done 

pre-indictment. 

3 
 In September 2007, two weeks before the scheduled trial 

date and after plea negotiations had broken down, a superseding 

indictment was returned, charging Grober with two counts of 

transportation of child pornography, in violation of 18 U.S.C. § 

2252A(a)(1); three counts of receipt of child pornography, in 

violation of 18 U.S.C. § 2252A(a)(2)(A); and one count of 

possessing material containing images of child pornography, in 

violation of 18 U.S.C. § 2252A(a)(5)(B). On October 4, 2007, 

Grober pled guilty to all six counts without a plea agreement, 

admitting that on July 9, 2005, he sent an email containing a 

video of child pornography (Count One); on July 27, 2005, he 

received an email containing an image of child pornography 

(Count Two), and sent back an email containing approximately 

seventeen images of child pornography (Count Three); on 

August 16, 2005, he received two separate emails, each 

containing an image of child pornography (Counts Four and 

Five); and in December 2005, he collected images and videos 

containing child pornography from the Internet and stored and 

possessed this material on computer hard drives and compact 

discs (Count Six). 

 Under U.S.S.G. § 2G2.2(a)(2), Grober’s base offense 

level (after grouping) was 22, which, with a criminal history 

category of I, resulted in a Guidelines range of 41-51 months 

imprisonment. With the enhancements to § 2G2.2 that appeared 

applicable, however, Grober’s offense level increased to 40. 

The eighteen levels of enhancements were comprised of two 

levels for material involving prepubescent minors or minors 

under age twelve (§ 2G2.2(b)(2)); five levels for distributing 

material to receive a thing of value, but not for pecuniary gain (§ 

2G2.2(b)(3)(B)); four levels for material portraying sadistic or 

masochistic conduct or other depictions of violence (§ 

2G2.2(b)(4)); two levels for the use of a computer (§ 

2G2.2(b)(6)); and five levels for possessing more than six 

hundred images of child pornography (§ 2G2.2(b)(7)(D)). After 

a two-level downward adjustment for acceptance of 

responsibility under § 3E1.1(a), Grober’s offense level became 

38 and his advisory Guidelines range became 235-293 months 

4 
imprisonment, a range that it is undisputed was correctly 

calculated and that even our dissenting colleague does not argue 

was not “draconian.” (Dissent at 17, 21). 

 The District Court, clearly troubled by the sentence of 

imprisonment that this Guidelines range produced, held hearings 

over twelve days between July and December 2008. Numerous 

witnesses testified – Special Agent Michell Chase, who 

examined Grober’s child pornography collection; Professor 

Douglas Berman, a law professor proffered by the defense as an 

expert on the Guidelines over vigorous government objection; 

several mental health professionals; and the mother of two boys 

who had been sexually abused and featured in pornography 

found in Grober’s collection. The Court also reviewed in open 

court a selection of fourteen images and ten videos provided by 

the government in support of the § 2G2.2 enhancements, as well 

as victim impact statements. 

 On December 8, 2008, the District Court held the final 

(thirteenth) day of hearings. Grober and his family and some 

friends addressed the Court and the Court heard extensive 

argument, after which it sentenced Grober to the mandatory 

minimum sentence of five years imprisonment, as well as three 

years of supervised release. The Court explained why it had 

done what it did and subsequently issued a lengthy opinion in 

support of the sentence, describing its efforts to “actively seek[] 

some rationale for the harsh sentence” recommended by the 

Guidelines and advocated by the government. United States v. 

Grober, 595 F. Supp. 2d 382, 390 (D.N.J. 2008). It noted that 

the government had declined to produce a witness, such as a 

representative from the Sentencing Commission, to discuss the 

basis for § 2G2.2, and that it found Professor Berman’s 

testimony to be helpful. “It was through Professor Berman’s 

testimony,” the Court explained, “that [it] initially gained an 

understanding of the role Congress has played in the increased 

penalties for child exploitation offenses and how intertwined the 

guidelines for child exploitation offenses have become with 

various pieces of legislation.” Id. at 391. The Court considered 

5 
as well a paper written by an assistant federal public defender, 

Troy Stabenow, entitled Deconstructing the Myth of Careful 

Study: A Primer on the Flawed Progression of the Child 

Pornography Guidelines, that criticized § 2G2.2. 

 The District Court also examined a handful of district 

court opinions that had expressed concern about the child 

pornography Guidelines and had found that those Guidelines 

were not based on empirical data. See United States v. Johnson, 

588 F. Supp. 2d 997 (S.D. Iowa 2008); United States v. Baird, 

580 F. Supp. 2d 889 (D. Neb. 2008); United States v. Hanson, 

561 F. Supp. 2d 1004 (E.D. Wis. 2008); United States v. Shipley, 

560 F. Supp. 2d 739 (S.D. Iowa 2008). The Court agreed with 

those courts that “§ 2G2.2 leads to a sentence that is too severe 

in a downloading case.” Grober, 595 F. Supp. 2d at 394. It 

concluded: 

To review, then, the Court has learned that actual 

working judges have decided to give these child 

pornography guidelines less weight in 

downloading cases; an experienced law professor 

with a widely used sentencing blog has been 

unable to probe the Commission’s thinking why it 

sentences downloaders this way; and an influential 

article makes persuasive arguments against the 

rationality of § 2G2.2 in downloading cases. Also, 

reported cases demonstrate that bad people 

involved with child pornography can get long 

sentences without using § 2G2.2 as the basis. 

Id. at 397. 

 The District Court discussed several additional reasons 

why it believed § 2G2.2 to be flawed. First, it found that most 

of the enhancements are essentially inherent in the crime and, 

thus, apply in nearly every case. Special Agent Chase testified 

that, of the 180 investigations she had conducted, every one 

involved 600 or more images, the use of a computer, and a 

6 
prepubescent minor, and eighty percent had at least one image 

depicting sado-masochistic conduct. When the enhancements 

are added to the base offense level of 22 – increased from 17 in 

2004 – the Guidelines, in the Court’s view, produced “an 

outrageously high sentence.” Id. Second, the Court found that 

the enhancements promote sentencing disparities. It stated that 

in 2006, the median prison term for federal child pornography 

offenses was sixty-three months imprisonment, indicating that 

sentencing courts were imposing significant sentences, but not 

as high as recommended by § 2G2.2. The Court expressed 

concern that the government’s charging discretion and plea 

negotiations unfairly affect defendants such as Grober who do 

not initially plead guilty, and compared Grober to another 

defendant it had sentenced to thirty months imprisonment for 

possession of child pornography after he pled guilty without 

delay and pursuant to a plea agreement. Because of intervening 

changes to the Guidelines and Grober’s initial decision to go to 

trial, Grober’s Guidelines range was over two hundred months 

higher than the earlier defendant’s. Third, the Court described 

how, given the nature of child pornography, it can be very 

difficult for the defense to rebut the government’s 

characterization of the egregiousness of a defendant’s conduct or 

dispute the government’s evaluation of the defendant’s 

collection compared to the collections of others, both of which 

may bear on the applicability of § 2G2.2’s enhancements. 

 Thus, the District Court held that the sentencing range § 

2G2.2 recommended for Grober would not be applied. 

Although it recognized “the importance of the guidelines to a 

rational sentencing protocol,” it was “convinced that for a 

typical downloading case, which this one assuredly is, the 

applicable guideline, § 2G2.2, cannot be given deference and 

produces an unreasonable sentencing range even before 

considering the sentencing factors in [18 U.S.C.] § 3553(a).” Id.

at 402. The Court found that “Grober’s case is squarely within 

the heartland of downloading cases. Instead it is truer to say that 

7 
§ 2G2.2, the designated guideline for the typical downloading 

case, is what falls outside of the heartland.” Id. at 403.1 

 The District Court then carefully considered the 

sentencing factors set forth in 18 U.S.C. § 3553(a) as applied to 

Grober. It first discussed the nature and circumstances of the 

offense, finding that Grober’s core conduct was consumption of 

child pornography and that there was no evidence that he had 

engaged in any improper conduct with a child. The Court made 

clear that it did not “minimize what David Grober did, or his 

towering insensitivity to the underlying acts portrayed, or the 

concept that voyeurs re-victimize the children in the images by 

looking at them,” while also acknowledging that it “cannot make 

Grober a surrogate for the monsters who prey on child victims 

through actual contact.” Id. at 404. The Court was impressed by 

Grober’s history and characteristics, noting the immense support 

he had continuously received from his family, friends, 

neighbors, and rabbi. 

 

1

 This is more than a “typical downloading case,” and we 

understand the District Court to have been referring to it in that 

manner as a form of shorthand. Grober’s shorthand for 

“downloading” in terms of his case is somewhat more accurate: 

a case “centering on personal possession of illicit images 

obtained on line, and involving no production or distribution 

other than noncommercial bartering.” (Grober’s Second-Step 

Br. at 48.) Here, as our dissenting colleague recognizes, the 

noncommercial bartering consisted of Grober sending and 

receiving a handful of emails that contained depictions of child 

pornography. While the Court recognized, as do we, that Grober 

pled guilty to the offenses of receipt and transportation of child 

pornography, which Congress has chosen to penalize more 

severely than possession, Grober is not in any sense a large-scale 

distributor of child pornography; indeed, the dissent references 

Grober’s admission to “sending two e-mails containing eighteen 

images.” (Dissent at 10).

8 
 With respect to the seriousness of the offense, the District 

Court considered the victim impact testimony given by the 

mother of two boys abused in images that Grober possessed. 

The Court found that a prison sentence of five years, the 

mandatory minimum sentence, affords adequate specific and 

general deterrence, as it would send a clear message about “how 

catastrophic the consequences are to those who download child 

pornography.” Id. at 409. It next concluded that, based on the 

testimony of the mental health professionals, “Grober presents a 

very low risk of harm to society” and there is no real risk that he 

would physically abuse children in the future. Id. at 409-10. 

The Court also noted that Grober appeared to have benefitted 

greatly from therapy – therapy which addressed, among other 

things, the fact that he had been sexually abused as a child. In 

terms of avoiding sentencing disparities, the Court considered 

average sentences imposed in other child pornography cases. 

Finally, considering § 3553(a)’s admonition that sentences be 

“sufficient but not greater than necessary,” the Court found, “as 

a matter of conscience,” that any term of imprisonment above 

the five-year mandatory minimum would be “unfair and 

unreasonable.” Id. at 411-12. 

 The government appealed, and Grober cross-appealed. 

The government argues that the District Court committed 

procedural error by not adequately addressing its arguments 

before rejecting the sentencing range § 2G2.2 recommended for 

Grober. Importantly, the government does not argue that the 

Court lacked the authority to disagree with § 2G2.2 on policy 

grounds or that the sentence the Court imposed is substantively 

unreasonable. Grober argues that the District Court incorrectly 

believed that it was required to impose the statutory mandatory 

minimum sentence. 

II. Jurisdiction and Standard of Review

 The District Court had jurisdiction pursuant to 18 U.S.C. 

§ 3231, and we have jurisdiction pursuant to 18 U.S.C. § 3742 

and 28 U.S.C. § 1291. 

9 
 We review sentences for abuse of discretion, and review 

them for both procedural and substantive reasonableness. 

United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en 

banc). Where a claim of procedural unreasonableness has been 

made, we must 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 § 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.

(quoting Gall v. United States, 552 U.S. 38, 51 (2007)). For a 

sentence to be procedurally reasonable, a district court must 

demonstrate “meaningful consideration of the relevant statutory 

factors and the exercise of independent judgment,” United States 

v. Grier, 475 F.3d 556, 571-72 (3d Cir. 2007) (en banc), and 

“respond to colorable arguments with a factual basis in the 

record,” United States v. Merced, 603 F.3d 203, 224 (3d Cir. 

2010). A major variance from the Guidelines requires a more 

significant justification than a minor one. Gall, 552 U.S. at 50. 

We will affirm a procedurally sound sentence as substantively 

reasonable “unless no reasonable sentencing court would have 

imposed the same sentence on that particular defendant for the 

reasons the district court provided.” Tomko, 562 F.3d at 568. 

“Our responsibility on appellate review of a criminal sentence is 

limited yet important: we are to ensure that a substantively 

reasonable sentence has been imposed in a procedurally fair 

way.” United States v. Levinson, 543 F.3d 190, 195 (3d Cir. 

2008). 

 The government does not challenge the District Court’s 

authority to vary, as the Court did, from the advisory Guidelines 

range based on its policy disagreement with § 2G2.2, nor does 

the dissent. See Spears v. United States, -- U.S. --, 129 S. Ct. 

840, 843 (2009) (per curiam); Kimbrough v. United States, 551 

10 
U.S. 85, 91, 101 (2007).2 When a district court does so, 

however, it must provide “a reasoned, coherent, and sufficiently 

compelling explanation of the basis for [its] disagreement.” 

Merced, 603 F.3d at 220 (internal quotation marks and citation 

omitted) (finding procedural error in the district court’s failure to 

adequately explain its apparent policy disagreement with the 

Guidelines’ career offender provision). We explained in Merced

that 

[a] “sufficiently compelling” explanation is one 

that is grounded in the § 3553(a) factors. The 

authors of the Guidelines, no less than district 

courts, have been tasked with ensuring that 

criminal sentences meet the goals of sentencing set 

forth in § 3553(a). Rita v. United States, 551 U.S. 

338, 348 (2007) (explaining that “both the 

 

2

 Other courts of appeals have held that Kimbrough and 

Spears apply to policy disagreements with Guidelines outside of 

the crack cocaine context. See, e.g., United States v. Corner, 

598 F.3d 411, 415 (7th Cir. 2010) (en banc) (“We understand 

Kimbrough and Spears to mean that district judges are at liberty 

to reject any Guideline on policy grounds – though they must act 

reasonably when using that power.”); United States v. Engle, 

592 F.3d 495, 502 (4th Cir. 2010) (“[D]istrict courts may ‘vary 

from Guidelines ranges based solely on policy considerations, 

including disagreements with the Guidelines’” (quoting 

Kimbrough, 552 U.S. at 101)); United States v. Cavera, 550 

F.3d 180, 191 (2d Cir. 2008) (en banc) (“As the Supreme Court 

strongly suggested in Kimbrough, a district court may vary from 

the Guidelines range based solely on a policy disagreement with 

the Guidelines, even where that disagreement applies to a wide 

class of offenders or offenses.”); United States v. Rodriguez, 527 

F.3d 221, 227 (1st Cir. 2008) (“[Kimbrough] makes plain that a 

sentencing court can deviate from the guidelines based on 

general policy considerations.”).

11 
sentencing judge and the Commission . . . carry 

out the same basic § 3553(a) objectives, the one, at 

retail, the other at wholesale.”). Thus, the 

Guidelines reflect the Sentencing Commission’s 

“rough approximation of sentences that might 

achieve § 3553(a)’s objectives.” Id. at 350. If a 

district court concludes that those objectives are 

not achieved by a sentence within the . . . 

Guideline range, and that belief is driven by a 

policy disagreement with the [particular 

Guidelines] provision, then the court must explain 

why its policy judgment would serve the § 3553(a) 

sentencing goals better than the Sentencing 

Commission’s judgments. In doing so, he should 

take into account all of the sentencing factors, not 

just one or two of them in isolation. We require 

this explanation so that, on appeal, we can 

determine whether the court’s disagreement is 

valid in terms of the § 3553 factors, the Sentencing 

Guidelines, and the perception of fair sentencing. 

Id. at 221 (select internal quotation marks, citation, and 

alterations omitted). The explanation must be “thorough” and 

more than a “conclusory statement of personal belief.” Id.

(citations omitted); see also United States v. Lychock, 578 F.3d 

214, 220 (3d Cir. 2009) (“To the extent that [the district court’s] 

assertions reflect a policy disagreement with the Guidelines 

recommendations, such a disagreement is permissible only if a 

[d]istrict [c]ourt provides ‘sufficiently compelling’ reasons to 

justify it.” (quoting Gall, 552 U.S. at 50)); United States v. Goff, 

501 F.3d 250, 257 (3d Cir. 2007). 

 Additionally, the Supreme Court has indicated that 

“closer review may be in order when the sentencing judge varies 

from the Guidelines based solely on the judge’s view that the 

Guidelines range fails properly to reflect § 3553(a) 

considerations even in a mine-run case.” Kimbrough, 551 U.S. 

at 109 (internal quotation marks and citation omitted); see also 

12 
Spears, 129 S. Ct. at 843 (stating that Kimbrough implies that an 

“‘inside the heartland’ departure . . . may be entitled to less 

respect”). Notably, the Kimbrough Court concluded that “closer 

review” there was unnecessary because the crack cocaine 

Guidelines at issue “do not exemplify the Commission’s 

exercise of its characteristic institutional role.” 552 U.S. at 

109.3 Similarly here, as we will describe, the Commission did 

not do what “an exercise of its characteristic institutional role” 

required – develop § 2G2.2 based on research and study rather 

than reacting to changes adopted or directed by Congress. 

III. Was Procedural Error Committed?

 The government is explicit: it is not arguing substantive 

reasonableness on this appeal, i.e., it does not oppose the 

sentence itself – five years imprisonment. Rather, its argument 

as to “the issue” before us is one of procedural error only: 

“Whether the District Court committed numerous procedural 

errors when it categorically rejected U.S.S.G. § 2G2.2 without 

adequately addressing the government’s well-supported 

arguments about the rationales of Congress and the Sentencing 

Commission, which are embodied in the Guideline.” 

 

3

 In Kimbrough, the Supreme Court found that the Sentencing 

Commission did not use its typical empirical approach in 

developing the crack/powder cocaine Guidelines, but instead 

modeled those Guidelines on the Anti-Drug Abuse Act of 

1986’s ratio scheme that treated every gram of crack cocaine as 

the equivalent of 100 grams of powder cocaine with respect to 

mandatory minimum sentences. The Commission later 

determined, “[b]ased on additional research and experience with 

the 100-to-1 ratio,” that the disparity “fails to meet the 

sentencing objectives set forth by Congress . . . .” Kimbrough, 

552 U.S. at 97 (citation omitted). 

13 
(Government’s First-Step Br. at 1.)4 We will first discuss the 

District Court’s recognition of the rationale behind the penalties 

for child pornography offenses and its consideration of the 

government’s arguments in support of § 2G2.2, and then 

describe various court decisions and Sentencing Commission 

reports that issued after the Court’s decision in this case and 

support the Court’s analysis. As we will explain, we conclude 

that the Court adequately considered the government’s 

arguments and set forth a sufficiently compelling justification 

for the sentence it imposed. We will then discuss some of the 

specific procedural errors alleged by the government and echoed 

by the dissent. While we agree that the Court erred in some 

respects, we do not find any significant procedural error 

warranting remand.

A. The District Court Adequately Addressed the 

Government’s Arguments Regarding the Rationale 

for § 2G2.2

 It is clear, and the government does not argue otherwise, 

that the District Court properly calculated the Guidelines range, 

treated that range as advisory, fully considered the § 3553(a) 

factors as applied to Grober, and did not base its sentence on any 

clearly erroneous facts. See Gall, 552 U.S. at 51. The Court 

explained at great length, both at sentencing and in its written 

opinion, the reasons it was concerned about § 2G2.2 in general 

and as applied to Grober in particular, and why it selected the 

sentence it did. 

 

4

 Parenthetically, we do not understand the government to 

mean by its use of the word “rejected” that the District Court did 

not consider § 2G2.2. Rather, we understand the government to 

be arguing that the Court rejected the sentencing range § 2G2.2 

recommended for Grober without adequately addressing the 

government’s arguments, an argument belied by a reading of the 

record and the Court’s oral and written sentencing opinions.

14 
 As its primary contention, the government faults the 

District Court for not “adequately addressing” its arguments 

about the rationale behind § 2G2.2, i.e., the rationale for the 

penalties § 2G2.2 counseled, but clarifies that it “does not argue 

that the District Court here was too terse, but instead that the 

reasons it did provide were erroneous.” (Fed. R. App. P. 28(j) 

letter, April 16, 2010.) And it tells us, in its briefing, that “every 

single reason proffered by the Court for rejecting [§ 2G2.2’s 

advisory sentencing range] was wrong” and “[t]herefore the 

Court procedurally erred in declining to consider those 

guidelines.” (Government’s Third-Step Br. at 2.) But if all of 

the reasons were wrong, a fortiori the Court considered § 2G2.2 

and the government simply disagrees with what the Court said. 

 That, it seems to us, does not fit neatly into a claim of 

procedural unreasonableness. Indeed, to the extent there is such 

a thing as a “typical” procedural unreasonableness challenge, 

that challenge would be to a sentencing proceeding in which a 

district court failed to explain its reasoning, certainly not the 

case here. See, e.g., Merced, 603 F.3d at 211; Lychock, 578 F.3d 

at 219; Goff, 501 F.3d at 262. Even accepting the government’s 

characterization of the issue before us, the District Court did not 

commit “significant procedural error.” Gall, 552 U.S. at 51. 

 While it is fair to say that the District Court could have 

said more in direct response to the government’s arguments 

highlighting the rationale behind the Guidelines, there can be no 

doubt from the thousands of pages of transcript and briefing and 

opinion that the Court considered these arguments.5 It clearly 

 

5

 Although the government criticizes the District Court for 

quoting opinions where courts had “been unable to locate any 

particular rationale for [§ 2G2.2’s enhancements] beyond the 

general revulsion that is associated with child exploitationrelated offenses,” the Court did not itself find that there was no 

rationale supporting the Guidelines. See Grober, 595 F. Supp. 

15 
recognized the concept that abused children are re-victimized 

whenever the records of their abuse are viewed, Grober, 595 F. 

Supp. 2d at 404, and described the statements of the mother who 

testified that “her children become ‘victims again’” every time 

the images of their abuse are viewed, id. at 408. The Court also 

explicitly noted that Congress established the mandatory 

minimum sentence for receipt and transportation of child 

pornography “on the basis that the exchanging through trading 

images contributes to the growth of child pornography and 

harms increasing numbers of children.” Id. at 404. Thus, the 

government’s suggestion at oral argument before us that the 

Court failed to acknowledge that Congress increased penalties 

“because the market for child pornography, as it increases, 

creates more harm to children by creating more images of child 

pornography” (Oral Arg. Tr. at 25), or, stated differently, that 

increased penalties for those who receive and transport child 

pornography will decrease the demand for and, thus, the 

production of child pornography, is directly belied by the 

Court’s opinion in this case. The Court also noted an additional 

harm, albeit one not at issue in this case, that “[C]ongress sought 

to punish: the seduction and blandishment of children into being 

victimized by using computer images.” Grober, 595 F. Supp. 2d 

at 404. The Court understood and adequately acknowledged the 

rationale behind the child pornography penalties and does not, as 

the government urges, need to “start from scratch.” (Oral Arg. 

Tr. at 10.)6

 

2d at 392 (quoting Shipley, 560 F. Supp. 2d at 744); id. at 393 

(quoting Johnson, 588 F. Supp. 2d at 1003).

6

 We have previously described the unspeakable harm 

suffered by the children featured in these images and the 

perpetuation of this harm caused by the distribution of the 

permanent record of their abuse. Goff, 501 F.3d at 259-60. 

Unlike Goff, this is not a case where the District Court failed to 

appreciate the seriousness of the offense. 

16 
B. Subsequent to Sentencing in this Case, the Sentencing 

Commission Has Issued Reports and Other Courts 

Have Issued Opinions that Support the District 

Court’s Decision 

 It must be remembered that between the time of Grober’s 

plea of guilty in October 2007 and his sentencing in December 

2008, the District Court was proceeding in largely uncharted 

territory. There was very little out there, in large part because 

district courts were just beginning to see how the then-recent 

and dramatically escalating features of the Guidelines 

calculations in child pornography cases would play out in the 

cases before them, particularly given the fact that, as a result of 

United States v. Booker, 543 U.S. 220, 245 (2005), the 

Guidelines were no longer mandatory. And so the Court 

reached out to wherever and whomever it believed could provide 

the information it needed to sentence Grober appropriately. 

 The District Court considered, for one thing, the 

Stabenow paper, which appeared in mid-2008, and Professor 

Berman’s testimony as to it, which confirmed, in the Court’s 

view, the reliability of Stabenow’s research. That paper – 

Deconstructing the Myth of Careful Study: A Primer on the 

Flawed Progression of the Child Pornography Guidelines – 

comprehensively traced the history of § 2G2.2 and supported, 

with a fair amount of research, Stabenow’s conclusion that § 

2G2.2 was seriously flawed, and why. District courts fairly 

quickly began to seize upon what Stabenow had found because 

they now had reason to believe that their concerns about § 2G2.2 

had some basis in fact. And by December 2008, when sentence 

was imposed on Grober, district courts were increasingly citing 

the paper and it had become, as the Court described it, 

“influential.” Grober, 595 F. Supp. 2d at 397. Were Stabenow 

to be an unobjective source, as the government claims that he is, 

we would not place much, if any, reliance on his paper. We 

17 
cannot, however, fault the Court for doing so because of the 

paucity of material available to it at the time.7 

 Since then, not only have numerous district courts across 

the country similarly found § 2G2.2 flawed, see, e.g., United 

States v. Diaz, -- F. Supp. 2d --, 2010 WL 2640630 (E.D. Wis. 

2010) (collecting cases); United States v. Riley, 655 F. Supp. 2d 

1298 (S.D. Fla. 2009); United States v. McElheney, 630 F. Supp. 

2d 886 (E.D. Tenn. 2009); United States v. Beiermann, 599 F. 

Supp. 2d 1087 (N.D. Iowa 2009); United States v. Phinney, 599 

F. Supp. 2d 1037 (E.D. Wis. 2009),8 but so, too, has the Court 

of Appeals for the Second Circuit, United States v. Dorvee, -- 

F.3d --, 2010 WL 3023799 (2d Cir. 2010), reh’g en banc denied

(2d Cir. Aug. 31, 2010). Also supporting the District Court’s 

conclusions is, among other reports, the recently issued 

Sentencing Commission’s Report on the history of the child 

pornography Guidelines, an extensive and extraordinarily 

thorough study, indeed. Were any of this available at the time of 

Grober’s sentencing, the Court could even more “adequately” 

have addressed and disposed of “the government’s well-

 

7

 It is unnecessary for purposes of this Opinion to parse 

Stabenow’s paper and determine if the government is correct as 

to the inaccuracies to which it points. Although our dissenting 

colleague disagrees that such analysis is unnecessary, he does 

not point to any inaccuracies in the paper. We also note that the 

Court of Appeals for the Second Circuit has recently cited 

Stabenow’s paper in its opinion critiquing § 2G2.2. United 

States v. Dorvee, -- F.3d --, 2010 WL 3023799, at *9 (2d Cir. 

2010), reh’g en banc denied (2d Cir. Aug. 31, 2010)..

8

 But see United States v. Cunningham, 680 F. Supp. 2d 844 

(N.D. Ohio 2010) (discussing the history of § 2G2.2 and the 

Stabenow paper and rejecting the notion that § 2G2.2 should not 

be afforded deference).

18 
supported arguments” and, likely, would not have needed to 

consider Stabenow’s research or permit the defense to call 

Professor Berman.9 

1. The Sentencing Commission’s Reports and 

Data

 The Sentencing Commission’s Report on the history of 

the child pornography Guidelines – issued in October 2009, 

almost a year after sentence was imposed in this case – supports 

the District Court’s decision by highlighting Congress’s role in 

developing § 2G2.2 and its laser-like focus on the child 

pornography Guidelines, particularly in the last several years.

See United States Sentencing Commission, The History of the 

Child Pornography Guidelines (Oct. 2009), available at 

http://www.ussc.gov/general/20091030_History_Child_Pornogr

 

9

 An illustration makes the point rather clearly. In one of the 

first district court opinions to discuss Stabenow’s paper, Judge 

Lynn Adelman relied almost exclusively on the paper to find 

that “given all of the flaws in the guideline,” and particularly the 

numerous enhancements the defendant faced, he could not, after 

considering the § 3553(a) factors, conclude that the guideline 

range of 210-262 months for a plea to transporting child 

pornography deserved deference – it was “far greater than 

necessary to satisfy the purposes of sentencing in this case.” 

Hanson, 561 F. Supp. 2d at 1005. In one of the most recent 

district court opinions, Judge Adelman did not even mention the 

Stabenow paper, given that he now had, as we describe in text, 

the 2009 Sentencing Commission’s Report on the history of the 

child pornography Guidelines, the Second Circuit’s opinion in 

Dorvee, and a virtual string citation to opinions by judges across 

the country who have “recogniz[ed] the flaws” in § 2G2.2 and 

“have declined to impose sentence within the range it 

recommends.” Diaz, -- F. Supp. 2d at --, 2010 WL 2640630, at 

*3. 

19 
aphy_Guidelines.pdf. The Report describes the development of 

the child pornography Guidelines, which have been 

substantively amended nine times since 1987, and repeatedly 

highlights the role that Congress has played. For example, the 

Report states that 

Congress has demonstrated its continued interest 

in deterring and punishing child pornography 

offenses, prompting the Commission to respond to 

multiple public laws that created new child 

pornography offenses, increased criminal 

penalties, directly (and uniquely) amended the 

child pornography guidelines, and required the 

Commission to consider offender and offense 

characteristics for the child pornography 

guidelines. 

Id. at 54; see also id. at 1 (“Congress has been particularly active 

over the last decade creating new offenses, increasing penalties, 

and issuing directives to the Commission regarding child 

pornography offenses.”); id. at 6 (“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.”). The Report states that, in the Commission’s effort 

to “to implement congressional intent,” it “reviewed sentencing 

data, considered public comment on proposed amendments, 

conducted public hearings on proposed amendments, studied 

relevant literature, and considered pertinent legislative history.” 

Id. at 7. It is clear from the Report, however, that the 

Commission was constantly reacting to Congress’s repeated 

directives, and the penalties for child pornography offenses that 

were steadily, and often dramatically, increasing. The result is a 

Guidelines provision where, as the Commission found, if the 

base offense level was any higher, the typical offender sentenced 

for receipt of child pornography would face a higher Guidelines 

20 
range than the typical offender convicted of conspiracy to 

commit murder and kidnapping. Id. at 47-48. 

 We will briefly recount some of the history set forth in 

the Report. When § 2G2.2 was first promulgated by the 

Commission in 1987, it had a base offense level of 13 – nine 

levels lower than it is today for transportation, distribution, and 

receipt offenses – and contained only two enhancements, one for 

material depicting a child less than twelve years old (two levels) 

and one for the retail value of the material distributed (at least 

five levels). The Commission promulgated § 2G2.4 in 1991 to 

address the then-recently federalized crime of possession, and 

proposed to set the base offense level at 10 – eight levels lower 

than it is today – and included only a two-level enhancement for 

material depicting a prepubescent minor or child under the age 

of twelve. Members of Congress were vocal in expressing their 

concern that the Guidelines ranges were not high enough for 

child pornography offenders – these were “smut peddlers” and 

“pedophiles” – but the Commission defended the Guidelines, 

noting that they “continue to require substantially tougher 

penalties than typically were imposed under pre-guidelines 

practice” and that data suggested that judges and prosecutors 

thought “that the offense level for the least serious forms of 

conduct under § 2G2.2 was too severe.” Id. at 21. Congress 

specifically directed the Commission, however, to make a 

variety of changes to § 2G2.2 and § 2G2.4, including raising the 

base offense levels to at least 15 and 13, respectively. 

 In 1995, Congress again specifically directed the 

Commission to raise the base offense level for child 

pornography offenses by at least two levels and include at least a 

two-level enhancement if a computer was used to transport the 

child pornography. The Commission complied, but expressed 

concern that the computer enhancement would apply broadly, 

and without any distinction between offenders who used a 

computer to widely disseminate child pornography and those 

who “email[ed] images to a single voluntary recipient.” United 

States Sentencing Commission, Report to the Congress: Sex 

21 
Offenses Against Children at 30 (June 1996), available at 

http://www.ussc.gov/r_congress/SCAC.pdf. This Report to 

Congress also noted significant downward departure rates (for 

reasons other than substantial assistance) for sentences imposed 

under the child pornography Guidelines: 23% under § 2G2.2 and 

13% under § 2G2.4. 

 In 2003, Congress, apparently without seeking any input 

from the Commission, which, of course, it was not required to 

do, passed the Prosecutorial Remedies and Other Tools to End 

the Exploitation of Children Today Act (“PROTECT Act”), 

which resulted in several significant changes to the child 

pornography statutes and Guidelines, including “the first and 

only time to date [Congress] directly amended the guidelines.” 

The History of the Child Pornography Guidelines at 38. As the 

Second Circuit recently noted, the former United States Attorney 

for the Eastern District of New York described this statute as 

“the most significant effort to marginalize the role of the 

Sentencing Commission in the federal sentencing process since 

the Commission was created by Congress.” Dorvee, -- F.3d --, 

2010 WL 3023799, at *9 (quoting Alan Vinegrad, The New 

Federal Sentencing Law, 15 Fed. Sent’g Rep. 310, 315 (June 

2003)). 

 The PROTECT Act added the “image table” to both § 

2G2.2 and § 2G2.4 which raised the offense level based on the 

number of images at issue, ranging from a two-level increase for 

at least ten images to a five-level increase for 600 or more 

images. It additionally added to § 2G2.4 a four-level increase 

for material portraying sadistic or masochistic conduct or other 

depictions of violence (which the Commission included in § 

2G2.2 in 1990). The Act also added a five-year mandatory 

minimum sentence for receipt and trafficking, and raised the 

statutory maximum from fifteen to twenty years for receipt and 

trafficking and from five to ten years for possession. The Act 

included general directives to the Commission to review the 

Guidelines, and in response, the Commission conducted several 

studies. The Commission concluded, for example, that the new 

22 
amendments would more than double the average sentences 

under § 2G2.2 (from 42.8 months to 88.8 months) and nearly 

double the average sentences under § 2G2.4 (from 28 months to 

54 months). 

 Effective November 1, 2004, the Commission again 

amended the Guidelines, consolidating § 2G2.4 into § 2G2.2. In 

response to the new minimum and maximum penalties set by 

Congress, the Commission set higher base offense levels for 

possession (increased from 15 to 18) and trafficking/distribution 

(increased from 17 to 22). The Report indicates that these 

offense levels were set below the mandatory minimum because 

“a majority of offenders sentenced under § 2G2.2 were subject 

to specific offense characteristics that increased their offense 

level.” The History of the Child Pornography Guidelines at 46 

(citing the enhancements for computer use and material 

involving a prepubescent child, to which, at the time, 89.4% and 

91.4% of offenders, respectively, were subject).10 The 

Commission was “concerned that setting the base offense level 

any higher than 22 for trafficking and receipt offenses would 

affect the proportionality of other guidelines,” and, could, for 

example, call for a higher penalty than that typically imposed on 

a defendant convicted of conspiracy to commit murder and 

kidnapping. Id. at 47-48. 

 Importantly, the 2009 Report notes that the Commission 

has identified a review of the child pornography Guidelines as a 

policy priority, and that “[f]or the past several years, § 2G2.2 

has had a high and increasing rate of downward departures and 

below-guideline variances.” Id. at 8, 54. Sentencing data bears 

 

10

 These percentages have only increased. In 2009, 97.2% of 

offenders sentenced under § 2G2.2 were subject to the computer 

enhancement and 94.8% were subject to the prepubescent 

material enhancement. Dorvee, -- F.3d at --, 2010 WL 3023799, 

at *10.

23 
out this observation. In fiscal year 2008, 35.7% of § 2G2.2 

sentences were non-government-sponsored below-Guidelines 

sentences, compared to 13.4% of such sentences for all 

offenders. Id. at 8 n.33. In fiscal year 2009, the percentage is 

even higher: 43.03% of § 2G2.2 sentences were nongovernment-sponsored below-Guidelines sentences, compared 

to 15.9% of such sentences for all offenders. United States 

Sentencing Commission, 2009 Sourcebook of Federal 

Sentencing Statistics, Tables 28 & N, available at 

http://www.ussc.gov/ANNRPT/2009/SBTOC09.htm. It bears 

mention, as well, that the Commission recently surveyed federal 

district court judges regarding their experience with, and 

opinions of, inter alia, the child pornography Guidelines, and 

found widespread dissatisfaction with § 2G2.2. United States 

Sentencing Commission, Results of Survey of United States 

District Judges January 2010 through March 2010 (June 2010), 

available at 

ttp://www.ussc.gov/Judge_Survey/2010/JudgeSurvey_201006.p

df. Seventy percent of responding judges – and only judges who 

had sentenced defendants after Kimbrough and Gall were to 

respond to the questions with respect to § 2G2.2 – reported that 

the Guidelines range for possession was too high, 69% said that 

the range for receipt was too high, and 30% believed that the 

range for distribution was too high. 

2. The Second Circuit’s Decision in United States 

v. Dorvee

 We return to United States v. Dorvee, a recent and 

important decision albeit one not addressed by the dissent, in 

which the Second Circuit concluded that § 2G2.2 is 

“fundamentally different” from other Guidelines and, unless it is 

“applied with great care, can lead to unreasonable sentences that 

are inconsistent with what § 3553 requires.” -- F.3d at --, 2010 

WL 3023799, at *9. Holding that a 233-month withinGuidelines sentence for the distribution of child pornography 

was both procedurally unreasonable (on grounds not relevant 

here) and substantively unreasonable because it was “manifestly 

24 
unjust,” id. at 98, the Court largely echoed the District Court 

here. It found that the Commission did not use an empirical 

approach to develop § 2G2.2, but instead amended it repeatedly 

at the direction of Congress, sometimes reluctantly. Id. at 95-96 

(noting the Commission’s criticism of the two-level 

enhancement for use of a computer and its general statement that 

“specific directives to the Commission to amend the guidelines 

make it difficult to gauge the effectiveness of any particular 

policy change, or to disentangle the influences of the 

Commission from those of Congress” (quoting United States 

Sentencing Commission, Fifteen Years of Guidelines 

Sentencing: An Assessment of How Well the Federal Criminal 

Justice System is Achieving the Goals of Sentencing Reform at 

73 (2004), available at 

http://www.ussc.gov/15_year/chap2.pdf). 

 The enhancements “cobbled together through this process 

routinely result in Guidelines projections near or exceeding the 

statutory maximum, even in run-of-the-mill cases.” Dorvee, -- 

F.3d at --, 2010 WL 3023799, at *10. The Dorvee Court noted, 

as did the District Court here, that many of these enhancements 

apply in almost all cases. See id. (noting that, of all the § 2G2.2 

sentences imposed in 2009, 94.8% involved an image of a 

prepubescent minor, 97.2% involved a computer, 73.4% 

involved an image of sadistic, masochistic, or otherwise violent 

conduct, and 63.1% involved 600 or more images); see also 

United States v. Tutty, 612 F.3d 128, 132 (2d Cir. 2010) (noting 

that 96.6% of offenders sentenced under § 2G2.2 in 2009 

received an enhancement based on the number of images 

possessed). Thus, “[a]n ordinary first-time offender is therefore 

likely to qualify for a sentence of at least 168 to 210 months, 

rapidly approaching the statutory maximum, based solely on 

sentencing enhancements that are all but inherent to the crime of 

conviction.” Dorvee, -- F.3d at --, 2010 WL 3023799, at *10. 

Because the Guidelines do not distinguish between these “runof-the-mill” offenders and the most dangerous offenders, the 

“result is fundamentally incompatible with § 3553(a).” Id. The 

Dorvee Court further cited as proof of the “irrationality” of § 

25 
2G2.2 that a defendant who actually engages in sexual conduct 

with a minor may be subject to a lower Guidelines range than 

one who distributes child pornography. Id.

 For these reasons, the Second Circuit concluded that this 

“eccentric Guideline of highly unusual provenance” is not 

worthy of the weight afforded to other Guidelines. Id. at *12; 

see also Tutty, 612 F.3d at 133 (vacating 168-month withinGuidelines sentence for receipt of child pornography and 

directing district court on remand to consider the policy 

considerations identified in Dorvee); United States v. Stone, 575 

F.3d 83, 97 (1st Cir. 2009) (“[W]e wish to express our view that 

[§ 2G2.2 is] in our judgment harsher than necessary. . . . [F]irstoffender sentences of this duration are usually reserved for 

crimes of violence and the like.”). 

C. Section 2G2.2 Was Not Developed Pursuant to the 

Sentencing Commission’s Characteristic Institutional 

Role

 We have recognized that “a Guideline is likely to reflect a 

rough approximation of sentences that might achieve § 

3553(a)’s objectives only when it is the product of empirical 

data and national experience, guided by a professional staff with 

appropriate expertise.” United States v. Arrelucea-Zamudio, 

581 F.3d 142, 155 n.12 (3d Cir. 2009) (internal quotation marks 

and citations omitted) (concluding that Sentencing Commission 

implemented Guideline authorizing departure for “fast track” 

programs in illegal reentry cases at congressional direction and 

not based on empirical data and national experience). In 

Kimbrough, the Supreme Court analyzed the crack cocaine 

Guidelines, and held that they were based on statutory 

mandatory minimum sentences rather than “empirical data and 

national experience” and, thus, the Commission had not 

exercised its “characteristic institutional role” in developing 

them. 552 U.S. at 109 (citation omitted). A district court would 

not, therefore, abuse its discretion by concluding that a withinGuidelines sentence would not meet the sentencing purposes set 

26 
out in § 3553(a), even in a typical case. See Stone, 575 F.3d at 

93 (noting that Kimbrough “recognized the fact that the crack 

cocaine guidelines were based on congressional policy, rather 

than empirical study by the Commission, as one ground 

permitting a variant sentence”). 

 As described in the Commission’s 2009 Report, and as 

discussed by the Second Circuit in Dorvee, and, by now, 

numerous district courts, § 2G2.2 was not developed pursuant to 

the Commission’s institutional role and based on empirical data 

and national experience, but instead was developed largely 

pursuant to congressional directives. See Dorvee, -- F.3d at --, 

2010 WL 3023799, at *11 (concluding that § 2G2.2 does not 

“exemplify the Commission’s exercise of its characteristic 

institutional role” (quoting Kimbrough, 552 U.S. at 109-10)); 

United States v. Huffstatler, 571 F.3d 620, 622-23 (7th Cir. 

2009) (“[P]erhaps for good reason, the government did not take 

issue with [the] premise that the child-exploitation guidelines 

lack an empirical basis” since the Commission acknowledged 

that Congress has used a combination of mandatory minimum 

increases and directives to the Commission to change child 

pornography sentencing policy.).11 As one district court put it, 

“the Commission probably did the best it could under difficult 

circumstances, but to say that the final product is the result of 

Commission data, study, and expertise simply ignores the facts.” 

Diaz, -- F. Supp. 2d at --, 2010 WL 2640630, at *7. 

 Congress, of course, has retained the ultimate authority 

over the Guidelines, and may enact directives to the 

Commission which the Commission is obliged to implement. 

Nonetheless, Kimbrough permits district courts to vary “even 

where a guideline provision is a direct reflection of a 

 

11

 But see United States v. Pugh, 515 F.3d 1179, 1201 n.15 

(11th Cir. 2008) (stating that § 2G2.2 does not “exhibit the 

deficiencies the Supreme Court identified in Kimbrough”). 

27 
congressional directive.” Arrelucea-Zamudio, 581 F.3d at 150 

(quoting Stone, 575 F.3d at 89); see also id. at 151 (“In sum, a 

Guideline is not a statute. If Congress does not want district 

courts to exercise their judicial function to sentence defendants 

based on the facts and circumstances of each case under the 

guidance of the § 3553(a) factors, then it has the power to amend 

the pertinent statute.”). 

D. The District Court Provided a Sufficiently Compelling 

Justification for Not Applying the Sentencing Range 

Recommended by § 2G2.2

 Nonetheless, the Sentencing Guidelines “deserve careful 

consideration in each case,” and because “they have been 

produced at Congress’s direction, they cannot be ignored.” 

Goff, 501 F.3d at 257. Here, after extensive consideration of § 

2G2.2 and the § 3553(a) factors, the District Court determined 

not to apply the Guidelines range recommended by § 2G2.2. 

This was not an abuse of its discretion. The Court set forth an 

explanation that we find to be sufficiently compelling, and wellgrounded in the § 3553(a) factors, to justify its decision. It 

adequately explained why it found § 2G2.2 flawed and why it 

varied from the recommended sentencing range to the ultimate 

sentence it imposed, which, it bears repeating, the government 

does not challenge. We also conclude that with the wealth of 

resources that have become available since the sentencing in this 

case, the Court’s decision now stands on even stronger ground. 

Finally, although the government does challenge the Court’s 

broad conclusions about § 2G2.2, it does not and cannot argue 

that the Court did not adequately consider the § 3553(a) factors 

as applied to Grober, as surely the Court did. (Oral Arg. Tr. at 

54 (government stating that it does “not challenge the procedural 

reasonableness of the Court’s examination of Grober’s personal 

factors”)).12 

 

12

 Although our dissenting colleague criticizes the District 

Court’s consideration of the nature and circumstances of the 

28 
 We emphasize that we do not hold that § 2G2.2 will 

always recommend an unreasonable sentence, and district courts 

must, of course, continue to consider the applicable Guidelines 

range. See 18 U.S.C. § 3553(a)(4); Gall, 552 U.S. at 49 (“As a 

matter of administration and to secure nationwide consistency, 

the Guidelines should be the starting point and the initial 

benchmark.”). Moreover, if a district court does not in fact have 

a policy disagreement with § 2G2.2, it is not obligated to vary 

on this basis. See Arrelucea-Zamudio, 581 F.3d at 148-49 

(citing United States v. Gunter, 462 F.3d 237, 249 (3d Cir. 

2006)). 

 

offense, 18 U.S.C. § 3553(a)(1), the government does not 

challenge the procedural or substantive reasonableness of this 

analysis as it applies to Grober.

29 
 Specific Allegations of Procedural Error

 We nonetheless agree with the government and the 

dissent that, at least in certain respects, the District Court 

procedurally erred. Where we disagree is whether these errors, 

singly or collectively, are significant enough to warrant remand. 

We are convinced that they are not. For example, the Court 

improperly faulted the government for not presenting a live 

witness, such as a representative from the Sentencing 

Commission, essentially to defend the child pornography 

Guidelines. Even aside from the government’s argument that 

this type of inquiry is legally impermissible, as a practical 

matter, it is unworkable. Additionally, Professor Berman did 

not demonstrate any particular expertise as to § 2G2.2, as 

opposed to the Guidelines in general, as to which, we note, the 

Court found his testimony helpful. In any event, the Federal 

Rules of Evidence – including those governing the admission of 

expert testimony – do not apply in sentencing proceedings, 

Grier, 475 F.3d at 570 n.9; Fed. R. Evid. 1101(d)(3); see also

U.S.S.G. § 6A1.3(a), and it is surely not apparent that any harm 

came as the result of this testimony. Indeed, our dissenting 

colleague would not find reversible procedural error on this 

ground alone. As we said at the outset, the Court sought to 

engage in a “dialogue” with the Sentencing Commission and 

defense witnesses about the history of and rationale for § 2G2.2 

and considered Stabenow’s paper because there was so little out 

there. That does not mean, however, that the Court did not also 

rely on the extensive briefing provided by the parties and other 

available resources, as clearly it did. 

 The government also challenges the District Court’s 

characterization of Grober as a typical defendant sentenced 

under § 2G2.2. It argues, first, that, because many child 

pornography-related cases are for various reasons not prosecuted 

federally, the typicality of a child pornography offender cannot 

be determined by looking only at those charged federally. The 

Court properly focused, however, on defendants sentenced under 

§ 2G2.2 and did not purport to undertake an exhaustive analysis 

30 
of offenders who are charged in state court or never charged at 

all. While, as we observed above at note 1, we agree with the 

government and the dissent that the Court’s description of 

Grober as a “downloading defendant” does not fully encapsulate 

the crimes of receipt and transportation of child pornography to 

which he pled guilty, the Court clearly comprehended the nature 

of Grober’s conduct, and sufficiently addressed the distinct 

harms caused by his trading images of child pornography. 

 Finally, we reach what, in the dissent’s view, is the “most 

egregious” error – the District Court’s “frontal assault on the 

plea bargaining system” and, indeed, its “rejection” of that 

system. (Dissent at 5, 6, 8). The Court did no such thing. In 

light of the fact that Grober twice had the opportunity to plead 

guilty to only a possession count and did not do so, his case, to 

be sure, is distinguishable from that of the “earlier defendant” 

referenced, perhaps inappropriately, by the Court – the 

defendant who quickly pled guilty to possession of child 

pornography. However, insofar as the Court was alarmed by the 

escalating offense levels implemented between the earlier 

defendant’s guilty plea and Grober’s guilty plea, the comparison 

is apt and illustrates in rather dramatic fashion why the Court 

was concerned. That having been said, to the extent that the 

dissent criticizes the Court for “penalizing the Government for 

its role in the plea bargaining system” (Dissent at 7), it is unclear 

what “penalty” the Court imposed, except the ultimate sentence 

which neither the government nor the dissent argues was 

substantively unreasonable. 

 Accordingly, we conclude that the District Court did not 

commit any significant procedural error requiring remand. 

IV. The Cross-Appeal

Grober’s cross-appeal need not detain us long. He 

argues, first, that all six counts of conviction must merge into a 

single continuing offense of possession to avoid violating the 

Double Jeopardy Clause, see United States v. Miller, 527 F.3d 

31 
32 

54, 72 (3d Cir. 2008), and, because the possession crime does 

not carry a mandatory minimum sentence of imprisonment, that 

he may be re-sentenced without regard to the five-year minimum 

required for the other counts of conviction. Even if this 

argument was not waived by his plea of guilty to all six counts 

in the superseding indictment, see United States v. Broce, 488 

U.S. 563, 570 (1989); United States v. Pollen, 978 F.2d 78, 84 

(3d Cir. 1992), it surely cannot, under the circumstances of this 

case, survive plain error review. 

 Grober argues, next, that a district court is not obligated 

to impose a mandatory minimum sentence that it concludes is 

greater than necessary to comport with the purposes of 

sentencing, unless the applicable statutory provision specifically 

provides that the Sentencing Reform Act does not apply. See 18 

U.S.C. §§ 3551(a), 3553(a). We have previously rejected this 

argument in analogous circumstances. See United States v. 

Walker, 473 F.3d 71, 85 (3d Cir. 2007); United States v. Kellum, 

356 F.3d 285, 289 (3d Cir. 2004). Accordingly, the District 

Court properly recognized that it was statutorily bound to 

impose a sentence of at least five years imprisonment in this 

case. 

V. Conclusion

 As we have described, the District Court set forth, in a 

thoughtful and carefully considered albeit at points imperfect 

opinion, a sufficiently compelling explanation for its policy 

concerns about § 2G2.2 and its justification for imposing a 

sentence outside the range § 2G2.2 recommended. Because the 

Court did not abuse its discretion in sentencing David Grober to 

a term of five years imprisonment, we will affirm. 
1

 I agree with my colleagues that the cross-appeal is

unmeritorious. Therefore, this dissent is limited to the

procedural reasonableness of Grober’s sentence.

United States v. Grober, Nos. 09-1318, 09-2120

HARDIMAN, dissenting in part

I join my colleagues in recognizing the diligence and

seriousness of purpose shown by the District Court in sentencing

David Grober. I join them also in recognizing that the District

Court “erred in some respects.” Maj. Op. at 15. Because I am

convinced that the procedural errors committed by the District

Court are material, however, I must respectfully dissent.1

I.

After pleading guilty to six federal crimes, Grober’s

statutory imprisonment range was 60-240 months. His base

offense level was 22 and his criminal history category was I,

yielding an initial imprisonment range of 41-51 months under

the United States Sentencing Guidelines (USSG). Because he

qualified for five sentencing enhancements pursuant to USSG

§2G2.2, however, Grober’s base offense level rose to 40. After

a two-level downward adjustment for acceptance of

responsibility, Grober’s final Guidelines range was 235-293

months imprisonment, which was capped at 240 months by

virtue of the statutory maximum.

Despite the fact that Grober’s Guidelines range was

aligned with the statutory maximum, he was sentenced to the

statutory minimum of 60 months imprisonment. A variance of

this magnitude requires us to “consider the extent of the

deviation and ensure that the justification is sufficiently
2

compelling to support the degree of the variance.” United States

v. Merced, 603 F.3d 203, 216 (3d Cir. 2010) (quoting Gall v.

United States, 552 U.S. 38, 50 (2007)).

“The freedom to vary from the . . . Guidelines . . . is not

free. Its price is a reasoned, coherent, and sufficiently

compelling explanation of the basis for the court’s

disagreement.” Merced, 603 F.3d at 219-20 (quoting United

States v. Lychock, 578 F.3d 214, 220 (3d Cir. 2009)). “A

‘sufficiently compelling’ explanation is one that is grounded in

the 3553(a) factors.” Id. at 221. Because the Sentencing

Commission is charged with effectuating the objectives of §

3553(a), the District Court, in categorically rejecting § 2G2.2,

“must explain why its policy judgment would serve the §

3553(a) sentencing goals better than the Sentencing

Commission’s judgments. In doing so, [the court] should take

into account all of the sentencing factors, not just one or two of

them in isolation.” Id.

Since the Supreme Court’s decision in United States v.

Booker, 543 U.S. 220 (2005), district judges have wrestled with

the scope of their sentencing discretion. Although statutory

ranges established by Congress still circumscribe this discretion,

in many cases (like this one) those ranges are so broad that the

potential for unwarranted sentencing disparities looms large.

Accordingly, Booker and its progeny reflect the Supreme

Court’s ongoing support for the Guidelines as a critical starting

point and frame of reference as judges discharge their most

solemn duty: imposing criminal sentences. See, e.g., United

States v. Kimbrough, 552 U.S. 85, 108 (2007) (“While rendering

the Sentencing Guidelines advisory, we have nevertheless

preserved a key role for the Sentencing Commission.”); Gall,
3

552 U.S. at 49 (“As a matter of administration and to secure

nationwide consistency, the Guidelines should be the starting

point and the initial benchmark.”); cf. Booker, 543 U.S. at 311

(Scalia, J., dissenting) (“The worst feature of the scheme is that

no one knows--and perhaps no one is meant to know--how

advisory Guidelines and ‘unreasonableness’ review will

function in practice.”).

In view of the Supreme Court’s continuing support for

the Guidelines, we must ensure that district courts do not

evaluate the sentencing factors of 18 U.S.C. § 3553(a) in a way

that renders the Guidelines irrelevant. At least two reasons

animate this imperative. First, fidelity to Booker and its progeny

demands it. Second, should the courts of appeals fail to police

wildly disparate sentences, I fear that Congress will respond to

the evisceration of the Guidelines by prescribing statutory

sentencing ranges that will, in their detail, rival the 282 laws of

the Code of Hammurabi about which the District Court in this

case expressed such consternation.

II.

In Kimbrough v. United States, 552 U.S. 85, 91 (2007),

the Supreme Court held USSG § 2D1.1, like all other

Guidelines, to be advisory. In light of the uncertainty

surrounding the authority possessed by district courts to alter or

disregard the 100 to 1 crack/powder ratio, the Court in Spears v.

United States, 129 S. Ct. 840 (2009), “clarif[ied] that district

courts are entitled to reject and vary categorically from the

crack-cocaine Guidelines based on a policy disagreement with

those Guidelines.” Id. at 844. Apparently in light of Spears, in

this appeal the Government has conceded that district courts
2 The Government’s concession here is consistent with

Merced, where we observed that the notion that a Guideline

driven by Congressional mandate is not subject to categorical

rejection on policy grounds has fallen out of favor. Merced, 603

F.3d at 226. Although the Supreme Court endorsed such a

categorical rejection of the crack cocaine Guidelines (Spears),

I am not convinced the Supreme Court would so hold in respect

to the child pornography Guidelines. The storied history of the

100 to 1 crack/powder ratio is sui generis in my view. See

United States v. Pugh, 515 F.3d 1179, 1201 (11th Cir. 2008)

(“The [child pornography] Guidelines involved in Pugh’s case,

however, do not exhibit the deficiencies the Supreme Court

identified in Kimbrough.”). Rather than blithely assuming that

the Supreme Court would permit the categorical rejection of all

Guidelines as it did with USSG § 2D1.1, the better practice

would be for district courts to consider each Guideline and

enhancement on its peculiar merits (or demerits). This approach

maintains the best of Booker (allowing district courts to do

justice) without facilitating such wildly disparate sentences as to

invite a Congressional “fix.”

4

may categorically reject USSG § 2G2.2.2 Nevertheless, the

District Court committed several missteps on its way toward

categorically rejecting § 2G2.2, and its wholesale rejection of

that Guideline rendered Grober’s sentence procedurally

unreasonable.

The Majority candidly acknowledges the District Court’s

errors in: (1) faulting the Government for not presenting a live

witness at sentencing to defend § 2G2.2; (2) taking testimony

from Professor Douglas Berman who, though an authority on

sentencing law and policy, conceded a lack of expertise with
5

respect to § 2G2.2; (3) describing Grober as a “downloading

defendant”; and (4) comparing Grober to a dissimilar defendant

who was sentenced pursuant to a plea agreement. Maj. Op. at

31-32. After briefly explaining away each of these errors, the

Majority concludes “that the District Court did not commit any

significant procedural error requiring remand.” Id. at 33.

If the only error committed by the District Court had

been to hear testimony from Professor Berman, I would agree

with my colleagues. If the District Court had committed only

the first, or the third, or the fourth error noted above, we would

be presented with a closer case. But when the foregoing errors

are considered in the aggregate, as they must be, the District

Court committed reversible error.

A.

I begin with the fourth error cited by the Majority

because I find it the most egregious. In support of its decision

to disregard § 2G2.2, the District Court adverted to “its own

experience about the problematic nature of charging discretion

and plea arrangements” and likened Grober to an unnamed

“earlier defendant” who had pleaded guilty to one count of

possession pursuant to a plea agreement. Grober, 595 F. Supp.

2d 382, 399 (D.N.J. 2008).

Although much remains unknown about this “earlier

defendant,” we do know that his crime of conviction was

materially different than Grober’s. The “earlier defendant”

pleaded guilty to one count of possession. Grober, on the other

hand, pleaded guilty to six counts (one for possession, three for

receipt or distribution, and two for transportation) after rejecting
3

 In United States v. Arrelucea-Zamudio, 581 F.3d 142

(3d Cir. 2009), we recognized that defendants who accept plea

offers are often subject to lower sentences than those who do

not. Id. at 157. Unlike the court in Arrelucea, which was

concerned with reducing sentencing disparities among like

defendants, here the District Court increased disparity by

treating defendants convicted of different offenses similarly.

6

the Government’s first two plea offers, which included the

dismissal of the receipt and distribution charges. By contrasting

the Guidelines range Grober faced with the range faced by the

“earlier defendant,” the District Court concluded that applying

the enhancements recommended by the Probation Office and

advocated by the Government would result in sentencing

disparities.

But the disparities caused by, to use the District Court’s

words, “charging discretion and plea arrangements,” Grober,

595 F. Supp. 2d at 399, are endemic to all Guidelines and have

nothing to do with § 2G2.2 in particular.3

 By rebuking the

Government for obtaining a superseding indictment after Grober

twice rejected the Government’s offers, the District Court

launched a frontal assault on the plea bargaining system.

Irrespective of the subject matter—whether it be child

pornography, drugs, securities fraud, or countless other federal

crimes—it is unremarkable that the Government tries to cajole

the guilty to fess up promptly. And those who do so are

rewarded with fewer or less significant charges, thereby earning

them more lenient sentences than those who are convicted after

a trial or an eleventh-hour plea. This is the essence of an

imperfect, but long-tenured system that has been endorsed by

the Supreme Court. See, e.g., Santobello v. New York, 404 U.S.
7

257, 260 (1971) (finding that courts have long considered plea

bargaining to be “an essential component of the administration

of justice,” and if “properly administered, [the procedure

should] be encouraged”); Brady v. United States, 397 U.S. 742,

752 (1970) (describing the “mutuality of advantage” for both the

State and the defendant to plea bargain: “For a defendant who

sees slight possibility of acquittal, the advantages of pleading

guilty and limiting the probable penalty are obvious -- his

exposure is reduced, the correctional processes can begin

immediately, and the practical burdens of a trial are eliminated.

For the State there are also advantages -- the more promptly

imposed punishment after an admission of guilt may more

effectively attain the objectives of punishment; and with the

avoidance of trial, scarce judicial and prosecutorial resources are

conserved for those cases in which there is a substantial issue of

the defendant’s guilt or in which there is substantial doubt that

the State can sustain its burden of proof.”); see also GEORGE

FISHER, PLEA BARGAINING’S TRIUMPH: A HISTORY OF PLEA

BARGAINING IN AMERICA (Stanford University Press 2003)

(finding that plea bargains were commonplace in criminal trials

in the United States as early as 1800); MILTON HEUMANN,PLEA

BARGAINING:THE EXPERIENCES OF PROSECUTORS,JUDGES, AND

DEFENSE ATTORNEYS (University of Chicago Press 1978)

(describing strong support for plea bargaining among

prosecutors, defense attorneys, and judges familiar with the

system).

In sum, by comparing Grober to the “earlier defendant”

who accepted a plea agreement, the District Court impermissibly

penalized the Government for its role in the plea bargaining

system. This was reversible error. 
8

B.

In addition to the District Court’s rejection of the plea

bargaining system, a significant evidentiary error tainted the

sentencing hearing. The District Court challenged the

Government to proffer a witness from the Sentencing

Commission to justify § 2G2.2 and to counter testimony from

Professor Berman regarding federal defender Troy Stabenow’s

paper: Deconstructing the Myth of Careful Study: A Primer on

the Flawed Progression of the Child Pornography Guidelines

(hereinafter Stabenow). In the words of the District Court:

“[I]insofar as the government might have established a dialogue

between Professor Berman and the Commission on the

Stabenow research or any other issue Professor Berman testified

about, it took a pass. So did the Commission . . . . Hence,

despite the Court’s invitation and many opportunities, the

testimony of Professor Berman is unrebutted by live testimony.”

Grober, 595 F. Supp. 2d at 391. As the Majority correctly

noted: “Even aside from the government’s argument that this

type of inquiry is legally impermissible, as a practical matter, it

is unworkable.” Maj. Op. at 32.

The Government was right to decline the Court’s

unorthodox invitation. It would have been no more proper for

the Government to have proffered a member of the Sentencing

Commission to opine regarding the history and purpose of §

2G2.2 than it would have been to proffer a Senator or

Representative to testify regarding the legislative history of the

child pornography laws. The Guideline promulgation process

is not subject to “discovery.” See, e.g., United States v. Leroy,

984 F.2d 1095, 1098 (10th Cir. 1993). The Commission so

advised the District Court in a letter attached as Appendix A to
9

the Court’s opinion, which stated:

The Act provides, in 18 U.S.C. § 3553(b)(1), that

in determining whether a circumstance was

adequately taken into consideration by the

Commission in formulating the guidelines, “the

court shall consider only the sentencing

guidelines, policy statements, and official

commentary of the Sentencing Commission.”

The legislative history of this provision makes

clear that Congress limited the court’s

consideration in this regard to preclude the

possibility of legal process directed at the

Commission, individual commissioners, or staff

in an effort to look beyond the sources specified.

See 133 Cong. Rec. 31,946 (1987) (statement of

Rep. Conyers) (“The purpose of the amendment

is to ensure that members of the Sentencing

Commission, as well as its records, are not subject

to subpoena at the sentencing of a convicted

defendant.”); 133 Cong. Rec. 33,110 (1987)

(statement of Sen. Thurmond) (“There was some

concern that failure to specifically designate the

materials that may be used . . . could result in

members of the Commission, or their notes or

other internal work products, being subpoenaed.

This was never intended by Congress.”).

Grober, 595 F. Supp. 2d at 412, app. A.
10

While the Government did not present live testimony to

rebut Berman or Stabenow, it did argue in its briefs that the

reasons supporting the creation and evolution of § 2G2.2 were

discernible. Although the Majority concludes that the District

Court “clearly” relied upon the briefs in this regard, Maj. Op. at

32, I find no record support for this conclusion. Accordingly, I

do not share the Majority’s view that the District Court truly

evaluated and rejected the Government’s arguments after due

consideration. Indeed, the District Court’s pejorative

characterization that both the Government and the Commission

“took a pass” suggests that the District Court placed nothing on

the Government’s side of the scale. And something outweighs

nothing every day of the week.

In its search for something, the District Court relied

extensively on Stabenow, which criticizes § 2G2.2 on several

levels. Regarding the District Court’s reliance on Stabenow,

the Majority states: “It is unnecessary for purposes of this

Opinion to parse the paper and determine if the government is

correct as to the inaccuracies to which it points.” Maj. Op. at 19

n.7. I disagree. Because Stabenow was foundational to the

District Court’s decision to disregard § 2G2.2, the Majority

should be obliged to engage the Government’s arguments to

ensure that Stabenow is, in fact, “sufficiently compelling” to

justify the Court’s divergence from the Guideline.

After the District Court knocked down its straw

man—i.e., the Government’s failure to provide a testimonial

defense of § 2G2.2—the only “evidence” that remained was

Stabenow, which offered an advocate’s blueprint for rejecting §

2G2.2 and the “unrebutted” testimony of Professor Berman. In

my view, this procedural error was sufficient to warrant vacatur.
4

 Because Grober pleaded guilty to transportation

offenses, the Majority’s reference to the 2009 survey of United

States District Court Judges, which found that 70% of judges

found the Guidelines for receipt and possession of child

pornography too harsh, is inapt. The relevant statistic from this

study (assuming its validity) is its finding that 30% of judges

think the Guidelines punish distributors too severely. According

to this study, the percentage of judges who find that the

Guidelines punish the distribution of child pornography too

severely is smaller than the percentage of judges who find the

Guidelines too severe for: heroin, crack cocaine,

11

C.

Next, I turn to the District Court’s repeated

mischaracterization of Grober’s crime as a typical

“downloading” offense. In declining to apply any of the

detailed enhancements found in § 2G2.2, the Court was

“convinced that for a typical downloading case, which this one

assuredly is, the applicable guideline . . . cannot be given

deference.” Grober, 595 F. Supp. 2d at 402. As the Majority

notes, however, “this is more than a ‘typical downloading

case.’” Maj. Op. at 9 n.1. Grober admitted sending two e-mails

containing eighteen images. This conduct formed the basis for

Counts One and Three at which Grober pleaded guilty to

transportation of child pornography, in violation of 18 U.S.C. §

2252A(a)(1). These two offenses—as distinguished from the

three counts of receipt of child pornography in violation of 18

U.S.C. § 2252A(a)(2)(A) and one count of possession of child

pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B), which

can properly be deemed “typical downloading” offenses—are

properly classified as transportation counts.4
methamphetamine, marijuana, and illegal entry offenses.

5

 In stark contrast to Kimbrough—where the Commission

found that “the crack/powder sentencing disparity is generally

12

Congress considers the transportation of child

pornography a particularly egregious crime, and in recent years

has expressed its concern that “the development of the Internet

and the digital image . . . ha[s] permitted child pornographers to

disseminate their product exponentially, not only across

America, but around the world, with a few simple strokes of a

keyboard.” 151 Cong. Rec. 4236 (Feb. 24, 2003); see also 151

Cong. Rec. 20221 (2005) (finding that “a substantial interstate

market in child pornography exists, including not only a

multimillion dollar industry, but also a nationwide network of

individuals . . . [who] distribute child pornography with the

expectation of receiving other child pornography in return.”).

As the District Court recognized, Congress imposed a

mandatory minimum for transportation offenses based on its

finding that “the exchanging through trading images contributes

to the growth of child pornography and harms increasing

numbers of children.” Grober, 595 F. Supp. 2d at 404. Given

the Court’s acknowledgment of the policy reasons supporting

Congress’s distinction between distributors and possessors, its

repeated characterization of Grober as a “typical downloader”

whose crimes were those of “consumption” was inexplicably

dismissive of Congress’s substantial concerns.

The District Court’s mischaracterization of this case as a

“typical downloading case” is also troubling given the

Sentencing Commission’s historically dissimilar treatment of

possession and distribution offenses.5 The distinction between
unwarranted,” 552 U.S. at 97—here, the Commission’s finding

that distribution is a more severe offense than possession mirrors

Congressional findings.

6

 Notably, even Stabenow acknowledges that in these

“first three years of the Guidelines regime [1987-1990], the

provisions of § 2G2.2 were the result of study at the

Commission, without obvious outside interference.” Stabenow

at 3 (2008).

7

 Moreover, although a 1991 Congressional amendment,

which Stabenow discusses in depth, directed the Commission to

treat “simple receipt” as a crime to be sentenced under § 2G2.2,

rather than § 2G2.4, the amendment made no change to the §

13

“simple receipt” and distribution offenses can be traced to the

Commission’s first set of Guidelines, promulgated in 1987,

which included a five-level enhancement for distribution for

monetary gain. USSC, The History of the Child Pornography

Guidelines, 11 (Oct. 2009) [History of the Guidelines].6 After

Congress criminalized possession of child pornography in 1991

and the Commission in response thereto proposed USSG §

2G2.4, which grouped together receipt and possession offenses,

the Chair of the Sentencing Commission assured Congress that

“defendants who peddle child pornography will be sentenced as

traffickers even if they successfully negotiate a plea to the lesser

offense of simple possession of child pornography.” Stabenow

at 7 (citing 137 Cong. Rec. H6736-02, Appendix B). The

Chairman’s letter stated that this difference in the severity of the

crimes “parallels the manner in which illegal drugs (or firearms)

receipt and possession are treated similarly under the guidelines,

while drug (or firearms) distribution or trafficking are treated

more severely.”7 Id.
2G2.2 distribution enhancement. There is also no evidence that

the Commission’s eventual consolidation of § 2G2.2 and §

2G2.4 reflected any Commission opposition to the additional

distribution penalty, but rather addressed the Commission’s

concern that an “unwarranted disparity in sentences” existed for

the similar offenses of “simple receipt” and “simple possession.”

USSC, Sex Offenses Against Children: Findings and

Recommendations Regarding Federal Penalties at 34 (1996).

8

 A “thing of value” is anything of valuable

consideration, e.g., child pornographic material received in

exchange for other child pornographic material bartered in

consideration for the material received. See § 2G2.2, cmt. 1.

14

The Commission’s inclusion of noncommercial bartering

of child pornography in its 2000 definition of distribution

followed a series of studies confirming the prevalence of

bartering, and its harm to children. In its 1990 Report to

Congress, the Commission noted that all the trafficking offenses

prosecuted up to that date had involved defendants who traded

images for pleasure, rather than for pecuniary gain. USSC,

Revised Report of the Working Group on Child Pornography

and Obscenity Offenses and Hate Crime, 17 (1990); see also

USSC, Sex Offenses Against Children: Findings and

Recommendations Regarding Federal Penalties, 10 (1996)

(“Many cases sentenced under this guideline involve trading

clubs or other barter types of exchanges.”). The Commission’s

proposed amendment was published in 1999 and included a

five-level enhancement for the distribution of child pornography

in exchange for a “thing of value.”8

 It received only one

substantive public comment: The Federal Public and

Community Defenders recognized that “child pornographic
15

material is a ‘thing of value’ and if received in a bartered

exchange for other child pornographic material, an enhancement

should apply.” History of the Guidelines at 34.

Thus, the Commission’s harsher treatment of trafficking,

and in particular non-pecuniary bartering such as the trading at

issue in this case, was the product of careful study and public

commentary, activities well within the “exercise of [the

Commission’s] institutional role.” Grober, 595 F. Supp. 2d at

393 (citing United States v. Shipley, 560 F. Supp. 2d 739, 745-

46 (S.D. Iowa 2008)). By failing to characterize Grober

properly as a distributor of child pornography, the District Court

gave little, if any, credence to the institutional expertise of the

Commission in developing Guidelines that treat distributors

more severely than mere possessors or receivers of child

pornography.

Moreover, the Commission’s adoption of higher penalties

for distribution offenses should be accorded no less deference

simply because of the ease with which files can now be traded

via e-mail or file sharing networks. Just as we do not treat less

severely the use of a firearm during the commission of a robbery

or the targeting of an elderly victim, both of which facilitate the

crime, so too should we not turn a blind eye to the devastating

effect of electronic distribution on the lives of abused children

merely because the distributor can inflict his injury by

transferring hundreds of files with the stroke of a key. See

United States v. Cunningham, 680 F. Supp. 2d 844, 853 (N.D.

Ohio 2010). In fact, the harsher penalties for online bartering

were adopted in part to target at-home traders who contribute

considerably to the electronic market for child pornography,

believing there to be little chance of detection from law
16

enforcement.

In both its extensive oral decision and its written opinion,

the District Court repeatedly referred to this as a “downloading

case.” Although the District Court referred intermittently to

Grober’s convictions for transporting child pornography, the

record belies any appreciation for the fact that these offenses are

qualitatively different and more severe than mere possession.

See Grober, 595 F. Supp. 2d at 382 (“The crime of conviction

in this case is David Grober’s downloading of child

pornography from the internet.”); id. at 391 (“The Court denied

the government’s motion to exclude and later to strike Professor

Berman’s testimony, because the Court believes it is vital to

gain some perspective on the operation of the sentencing

guidelines in these downloading cases.”); id. at 393 (“The

Stabenow chart is a one-page devastating commentary on

guidelines sentencing in downloading cases.”); id. (“The Court

agrees with the reasoning of Judge Pratt and Judge Adelman that

§ 2G2.2 leads to a sentence that is too severe in a downloading

case.”); id. at 391 (“[A]s the recent cases show, judges are

varying from the guidelines in typical downloading cases when

they measure the guidelines against the § 3553(a) factors.”); id.

at 402 (“The Court arrives at this point in the sentencing

analysis convinced that for a typical downloading case, which

this one assuredly is, the applicable guideline, § 2G2.2, cannot

be given deference and produces an unreasonable sentencing

range even before considering the sentencing factors in §

3553(a).”); id. (“[T]he Court finds that David Grober’s case is

squarely within the heartland of downloading cases.”); id. at 410

(“As indicated above, the government’s publication ‘Federal

Prosecution of Child Sex Exploitation Offenders, 2006’ states

that as of December 2007, the average sentence for the
9

 Although the Majority correctly notes that “Grober is

not in any sense a large-scale distributor,” Maj. Op. at 9 fn.2,

it points to no evidence that Congress intended receipt and

transportation crimes to apply only to large-scale enterprises. 

Rather, Congress intended the increased penalties associated

with these crimes to apply to small-scale, home-based

distributors such as Grober. 151 Cong. Rec. 20221 (2005).

17

downloading defendant is 63 months. From this same report

comes the information that David Grober is a very typical

downloading defendant.”).

The foregoing quotations demonstrate that the District

Court’s references to “downloading” were not merely a “form

a shorthand,” Maj. Op. at 9 fn.2. Rather, they evidence a

fundamental misapprehension of Grober’s crimes. This

constitutes reversible error. 9

D.

Finally, the District Court’s wholesale rejection of §

2G2.2 throws the wheat out with the chaff. I have no quarrel

with the concerns expressed by the District Court regarding the

draconian nature of Grober’s Guidelines range and the fact that

the enhancements for use of a computer (USSG § 2G2.2(b)(6))

and pre-pubescent minors (USSG § 2G2.2(b)(2)) would put

Grober into a category with 95% of those convicted of child

pornography offenses. But the District Court was wrong to

ignore: (1) the fact that Grober’s collection contained material

portraying sadistic and masochistic conduct (USSG §

2G2.2(b)(4)); (2) that Grober distributed child pornography for

the receipt, or expectation of receipt, of a thing of value (USSG
18

§ 2G2.2(b)(3)(B); and (3) that Grober possessed well over 600

images (USSG § 2G2.2(b)(7)(D)). While the District Court was

free to evaluate these facts pursuant to 18 U.S.C. § 3553(a), it

was not permitted to disregard them entirely.

At least three of our sister courts of appeals have noted

the trend towards granting downward variances in cases

involving § 2G2.2. See, e.g., U.S. v. Morace, 594 F.3d 340,

346-47 (4th Cir. 2010); U.S. v. Stall, 581 F.3d 276, 284 n.2 (6th

Cir. 2009); U.S. v. Huffstatler, 571 F.3d 620, 622-23 (7th Cir.

2009). Grober’s sentence is problematic, however, because

instead of assessing all of the relevant facts of Grober’s case as

part of its § 3553(a) analysis—including those facts that happen

to be embodied in § 2G2.2 enhancements—the District Court

rejected § 2G2.2 in toto. Having unmoored itself entirely from

this Guideline, the District Court begins (and ends) its

evaluation of the § 3553(a) factors by fixating on the five-year

statutory minimum. Consequently, the District Court’s variance

was both inadequately justified and, at least in part, based on

clearly erroneous facts, to wit: Grober was a “typical

downloader,” his collection was not “egregiously large,” and

Agent Chase was not qualified “to distinguish between ‘bad’

child pornography and ‘really bad’ child pornography,” Grober,

595 F. Supp. 2d at 401. See Gall v. United States, 552 U.S. 38,

51 (2007).

A survey of other district courts that have evaluated §

2G2.2 demonstrates the nature of the District Court’s error here.

While it is true that district courts have varied downward from

the Guidelines range—and sometimes substantially so—they

still considered case-specific facts underlying § 2G2.2

enhancements; they did not entirely disregard those facts along
19

with the Guideline. See, e.g., United States v. Beiermann, 599

F. Supp. 2d 1087, 1107 (N.D. Iowa 2009) (“[A] reasoned

alternative to the flawed guideline is for the sentencing judge to

begin with the base offense level, which reflects the mandatory

minimum statutory sentence, U.S.S.G. § 2G2.2(a), and then to

consider appropriately identified factors, such as those in §

2G2.2(b)(1), (3), (4), and (5), but to give those factors more

appropriate weight in the determination of a particular

defendant’s sentence. Such ‘cherry picking’ and reweighing of

factors from the guideline is appropriate—indeed, totally

consistent with the exercise of my discretion to apply the 18

U.S.C. § 3553(a) factors.”); United States v. Jacob, 631 F. Supp.

2d 1099, 1108 (N.D. Iowa 2009) (“While I reject the extent of

the enhancements based on these considerations [of specific

aggravating factors] in § 2G2.2 and § 2G2.1, I find that some

enhancement of the defendant Jacob’s non-guideline sentence

above the mandatory minimum is appropriate based on these

considerations.”); cf. United States v. Burns, 2009 WL 3617448,

*7–*8 (N.D. Ill. 2009) (“Here, the court declines to disregard

the Guidelines entirely and instead adapts them by beginning

with the base offense level (as it reflects a statutory minimum)

and then rejecting enhancements that the court determines exact

punishment that is duplicative of the underlying offense, or do

not otherwise effectively serve to distinguish less from more

culpable conduct. On the other hand, the court will apply an

enhancement or downward adjustment where it finds such an

adjustment appropriate based on Burns’s relevant individual

characteristics or other factors outlined in 18 U.S.C. §

3553(a).”).

Each of the aforementioned courts determined that

certain § 2G2.2 factors—e.g., the number of the images, the
20

sadism or masochism depicted in the images, the defendant’s

distributing activities—warranted a sentence above the statutory

minimum. See Burns, 2009 WL 3617448 at *13, *16

(incorporating a five-point “pattern of . . . exploitation”

enhancement as basis for a 72-month sentence); Beiermann, 599

F. Supp. 2d at 1107, 1117–18 (sentencing defendant to 90

months after “reweighing” and “cherry picking” Guidelines

factors); Jacob, 631 F. Supp. 2d at 1108 (reweighing the

sadistic, masochistic, or violent content and the distribution

factors as a basis for a 78-month sentence on transportation

count); see also United States v. Cunningham, 680 F. Supp. 2d

844, 853, 862 (N.D. Ohio 2010) (accepting § 2G2.2 and

imposing a within-Guidelines range sentence of 121 months);

United States v. McElheney, 630 F. Supp. 2d 886, 904 (E.D.

Tenn. 2009) (imposing a 78-month sentence because based on

the size and sadistic nature of the defendant’s collection and the

prepubescent victims, “the Court cannot conclude he is among

the least culpable of child pornography offenders”); United

States v. Noe, 2009 WL 3836707, *7 (D. Neb. 2009) (granting

variance but imposing an 84 month sentence rather than

statutory minimum); United States v. Johnson, 588 F. Supp. 2d

997, 1005 (S.D. Iowa 2008) (considering the “number and

nature of the underlying photographs” as basis for an 84-month

sentence); United States v. Noxon, 2008 WL 4758583, *3 (D.

Kan. 2008) (considering, in part, the defendant’s distribution

activities as basis for a 144-month sentence).

The two judges most heavily cited by the District Court

followed the procedure I just outlined. Judge Adelman in

United States v. Hanson considered the facts relevant to § 2G2.2

enhancements in arriving at a 72-month sentence for

transportation and receipt of child pornography, stating: “In
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order to acknowledge some of the aggravating factors in this

case, such as number and type of images, and to insure just

punishment, I did not impose a sentence at the minimum, as

defendant requested. The minimum should be reserved for the

most mitigated of cases.” 561 F. Supp. 2d 1004, 1012 (E.D.

Wis. 2008). Likewise, Judge Pratt in United States v. Shipley

accounted for the “horrific nature of some of the images” as well

as the defendant’s role as a distributor in “actively and

consistently perpetuating the market for this material” as bases

for a 90-month sentence for receipt of child pornography. 560

F. Supp. 2d 739, 745-46 (S.D. Iowa 2008).

The District Court’s wholesale rejection of all things

related to § 2G2.2—including even the legitimate concerns at

the heart of each enhancement—is quite atypical. In cases like

Grober’s, most courts that have imposed substantial downward

variances have given some weight to those aggravating factors

enunciated in § 2G2.2 as part of their § 3553(a) analyses.

Regardless of the validity of the District Court’s general policy

argument against § 2G2.2 enhancements as they fit within the

Guidelines scheme, the Court in this case erred in its § 3553(a)

analysis by minimizing and sidestepping significant facts about

Grober’s crime, seemingly in protest of the draconian nature of

§ 2G2.2 as a whole. See Arrelucea, 581 F.3d at 151, 156

(noting that it is a “judicial function to sentence defendants

based on the facts and circumstances of each case under the

guidance of the § 3553(a) factors”).

The District Court’s nullification of § 2G2.2 influenced

its curt discussion of the “nature and circumstances of the

offense,” which comprises a mere three paragraphs, in contrast

to its ten-paragraph discussion of the “history and characteristics
10 Like the District Court, the Majority minimizes

Grober’s transportation crimes by noting the small number of

images he distributed. Conversely, they fail to consider the

quantity and nature of the images in Grober’s collection in

their analyses of the nature and circumstances of his crime of

possession.

11 The Majority asserts that because “many of [§ 2G2.2’s]

enhancements apply in almost all cases,” these enhancements

are in fact built-in to the original offense. See Majority Op. at

19 (citing United States v. Dorvee, 604 F.3d 84 (2d Cir. 2010)

(noting that 97.2% of child pornography cases in 2009 involved

images of prepubescent minors and 97.2% involved the use of

a computer)). But the Majority does not justify the District

Court’s disregard for those enhancements that apply only 73.4%

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of the defendant.” Grober, 595 F. Supp. 2d at 404-408. Within

the “nature and circumstances of the offense” discussion, the

District Court brushes aside the size and content of Grober’s

child pornography collection (over 1500 pictures and 200

videos) without any mention of Special Agent Chase’s

testimony that this was the second largest collection out of 180

she had analyzed in her four-year career and that it included

“more children . . . involved in actual sexual activity, as opposed

to posing, than appeared in other collections she analyzed.” Id.

at 400, 404.10 Even if the § 2G2.2 enhancements for 600

images, prepubescent children, and masochistic content apply in

most cases and are therefore deserving of less weight than that

which the Guidelines affix to them, surely the enormity and

offensive nature of Grober’s collection is relevant enough to the

“nature and circumstances of the offense” to deserve more than

two dismissive sentences.11 See id. at 404 (“The Court also is
and 63.1% of the time (offenses involving images of sadistic,

masochistic, or otherwise violent conduct, and offenses

involving over 600 images, respectively). Given that 26.6% of

cases do not involve images of violence and 36.9% involve

fewer than 600 images, the fact that Grober’s collection was

both greater than 600 and included violent images demonstrates

beyond peradventure that his was not one of the “most mitigated

of cases.” See United States v. Hanson, 561 F.Supp.2d at 1012.

23

not convinced that Grober’s child pornography collection is

egregiously large. He viewed a large amount of pornography

over three years, he hoarded images, and he kept his images

sloppily mixed in with other, legal files.”).

The District Court’s similarly dismissive treatment of

Grober’s status as a distributor rather than a mere possessor has

already been discussed at length, but warrants mention again

here because this mischaracterization further tainted the Court’s

§ 3553(a) analysis of the nature of the crime. See id. (“The

nature and circumstances of his offense are at the core related to

consumption.”).

In sum, even if it were proper to accept in its entirety the

District Court’s policy disagreement with § 2G2.2, the extent to

which it failed to account for significant facts that underlie §

2G2.2 enhancements reflects a deeply flawed analysis of the §

3553(a) factors. This “fail[ure] to adequately explain the chosen

sentence” and reliance on a number of “clearly erroneous facts”

requires vacatur and remand.
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III.

As I noted at the outset, the District Court labored

mightily to impose a just sentence upon David Grober. That

effort was animated by a candid fear that Congress’s zeal to

address the proliferation of child pornography has resulted in

penalties grossly disproportionate to the culpability attendant to

this type of crime. Even accepting that premise, it is still wrong

for a sentencing court to: (1) categorically reject the validity of

a Guideline by impugning generally the plea bargaining system;

(2) punish a party for failing to present “evidence” it never

should have presented in the first place; (3) mischaracterize a

defendant’s crimes of conviction; and (4) use a categorical

rejection of a Guideline as a proxy for ignoring some of the

relevant § 3553(a) factors. Because each of these errors is

manifest on this record, I would vacate Grober’s judgment of

sentence and remand for a new sentencing hearing.