1

The Honorable Harold D. Vietor, United States District Judge for the Southern

District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 06-1053

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa.

Terry Allen Garnette, *

*

Appellant. *

___________

Submitted: September 26, 2006

Filed: January 10, 2007 (corrected 1/12/07)

___________

Before WOLLMAN, BRIGHT, and BOWMAN, Circuit Judges.

___________

BOWMAN, Circuit Judge.

Terry Allen Garnette pleaded guilty to one count of producing child

pornography in violation of 18 U.S.C. § 2251(a) and one count of distributing child

pornography in violation of 18 U.S.C. § 2252(a)(2). The District Court1

 calculated

Garnette's advisory sentencing guidelines range as 180 to 210 months' imprisonment,

but sentenced Garnette to 255 months' imprisonment. Garnette appeals his sentence.

We affirm. 
2

To protect the privacy of Garnette's victims, we will use only their first names.

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I.

We set forth the facts as stated in the Presentence Investigation Report (PSR).

Garnette did not object to the PSR, and the District Court found the facts as stated

therein. See United States v. Beatty, 9 F.3d 686, 690 (8th Cir. 1993) (ruling that a

district court may accept as true all factual allegations in a PSR not objected to by the

parties). 

Garnette was arrested on June 28, 2004, after his live-in girlfriend, Christina,2

discovered images of child pornography on Garnette's home computer and contacted

police. Several of the images were of Christina's four-year-old daughter, Dusty,

sitting on Garnette's lap with her underwear either removed or pulled to the side so

that her genitals were exposed. Dusty had come to live with Christina and Garnette

in April 2004. At that time, Christina was being treated for ruptured ovarian cysts and

taking medication that caused drowsiness. Garnette used Christina's illness to his

advantage, taking the pornographic pictures of Dusty while Christina was napping.

Christina's suspicions about Garnette's sexual interests were raised in May 2004 when

Garnette told her that he was sexually aroused by young girls. Christina also became

aware that Garnette was using the internet to trade images of adult women who were

dressed to appear younger. When Dusty began acting differently toward Garnette,

Christina surreptitiously searched Garnette's computer while he was at work.

In addition to finding the pornographic pictures of Dusty on the computer,

Christina found email messages that Garnette had written and received discussing

trading Dusty for another child. Christina told police that Garnette had posted an

advertisement on the internet "indicating that he had a female toddler under the age

of five which he wanted to trade for an older child." PSR ¶ 19. Responses to the
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advertisement came from the United States and seven other countries. Christina saw

at least one response that "discussed purchasing Dusty rather than trading her." Id.

After he was arrested and read his rights, Garnette agreed to cooperate with the

police. He informed them that he had been spending a couple of hours a day on his

computer looking at child pornography and conversing with others about sex.

Garnette admitted downloading hundreds of images of child pornography and trading

images of child pornography with individuals in the United States, Holland, England,

New Zealand, and the Phillippines. Garnette acknowledged that he had developed a

specific interest in bondage, sadism, and masochism, and that he had engaged in such

practices with consenting adult women. Garnette stated that he took the pictures of

Dusty to fulfill part of a fantasy. He confessed to taking four to six pictures of Dusty

when changing her underwear. 

A search of Garnette's computer revealed hundreds of images of adult and child

pornography. A significant amount of the images contained themes of bondage and

sadism. For example, Garnette had collected a number of images from a known

perpetrator called "Husker Fan." The images show Husker Fan abusing his sevenyear-old step-daughter and depict bondage, sadism, anal rape, vaginal rape, anal and

vaginal rape with foreign objects, and the perpetrator standing over the naked girl with

the words "cut me," "slut," and "hurt me" written on her chest and abdomen. The

computer also contained at least thirteen video clips involving child pornography.

These included a series of video clips involving a four-year-old girl who is a known

victim from Texas commonly referred to as "Baby J." In the Baby J. series, Baby J.

is shown struggling and crying while an adult male penetrates her both anally and

vaginally and ejaculates into her mouth. Baby J. is bound and sometimes blindfolded

in the videos.

Prior to sentencing, Garnette voluntarily submitted to a psychosexual evaluation

by Jason Smith, Psy.D. Garnette told Dr. Smith that he had been viewing

pornography on the internet for the past three or four years, and child pornography on
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the internet for the past two years. Garnette indicated that he was initially only

curious about child pornography, but as time went on, child pornography became

more of his focus and he began masturbating after viewing the images. Garnette said

that he fantasized about having sex with young girls. Garnette "feels that he is

sexually obsessed." PSR Attachment: Psychosexual Evaluation at 5. Garnette

believes that "it is everyone's right to have sex and that children try to sexually

provoke adults." Id. He indicated that he "was glad he was caught because he knew

it would have gotten worse." PSR ¶ 29. Dr. Smith diagnosed Garnette with

pedophilia and found that Garnette demonstrated a significant set of researchsupported risk factors that place him at medium risk for re-committing a sexually

deviant offense. According to Dr. Smith, after Garnette is released from prison there

is a 25% likelihood that he will re-offend within five years and a 37% likelihood that

he will re-offend within ten years. Garnette's test results further suggest that "he has

attributes and behaviors highly similar to those [of] known sex offenders and the

condition of sex deviance may be a component of his personality make-up." PSR

Attachment: Psychosexual Evaluation at 10.

The District Court calculated Garnette's guidelines sentencing range as 168 to

210 months, but noted that the statutory mandatory minimum sentence was 180

months, effectively making the sentencing range 180 to 210 months. Garnette filed

a sentencing memorandum requesting a downward departure or variance from the

guidelines sentencing range based on his history of sexual abuse as a child, his "super"

acceptance of responsibility, and his vulnerability to victimization in prison.

Appellant's Br. at 4. The government requested the statutory maximum sentence of

360 months. The District Court denied Garnette's request for a downward departure

or variance. The court then considered each of the 18 U.S.C. § 3553(a) factors and

sentenced Garnette to 255 months, "the midway point between the top of the guideline

range and the statutory maximum." Sentencing Tr. at 33. The sentence represents a

21% upward variance from the guidelines range. 
3

The District Court set forth its reasons for the upward variance at the

sentencing hearing and in a sealed "Statement of Reasons" form attached to the

judgment.

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II.

Garnette's first argument is that his sentence is unreasonable in violation of

United States v. Booker, 543 U.S. 220 (2005). Specifically, Garnette contends that

the reasons given by the District Court for imposing a sentence above the guidelines

range were already taken into account by the guidelines themselves. "When the

district court has correctly determined the guidelines sentencing range, as in this case,

we review the resulting sentence for reasonableness" under the abuse of discretion

standard. United States v. Gatewood, 438 F.3d 894, 896 (8th Cir. 2006). A sentence

within the guidelines range is presumed reasonable, while a sentence that falls outside

the guidelines range is reasonable only if the district court offers appropriate

justification for the sentence under the factors identified in 18 U.S.C. § 3553(a). Id.

When a district court varies from the guidelines range based upon its application of

§ 3553(a), we consider both whether the district court's decision to grant a variance

is reasonable and whether the extent of the variance is reasonable. United States v.

Mashek, 406 F.3d 1012, 1017 (8th Cir. 2005). "A sentence may be unreasonable if

the district court failed to consider a relevant factor that should have received

significant weight, gave significant weight to an improper or irrelevant factor, or

considered only appropriate factors but committed a clear error of judgment by

imposing a sentence that lies outside the limited range of choice dictated by the facts."

United States v. Larrabee, 436 F.3d 890, 892 (8th Cir. 2006).

While the District Court imposed a sentence outside the presumptively

reasonable guidelines sentencing range, the District Court's careful application of the

§ 3553(a) factors and stated justification for the upward variance convince us that the

District Court did not exceed the permissible bounds of its discretion and, therefore,

the sentence is reasonable.3

 
-6-

In imposing the sentence, the District Court first considered the "history and

characteristics of the defendant" under § 3553(a)(1). The court noted that Garnette

had been "a long time actor in this underground." Sentencing Tr. at 31. As discussed

above, Garnette admitted viewing child pornography for approximately two years

prior to his arrest. He told police that he has a specific interest in bondage, sadism,

and masochism, and that he was spending several hours each day viewing child

pornography and discussing sex with others over the internet. Garnette's childpornography trading network was extensive; he interacted with individuals from the

United States, Holland, England, New Zealand, and the Phillippines. The District

Court did not abuse its discretion in considering Garnette's ongoing history of

viewing, downloading, and trading deviant pornography.

Second, the District Court considered § 3553(a)(2)(A) and stated that "only a

severe sentence" could account for the seriousness of Garnette's offense conduct,

promote respect for the law, and provide just punishment for the offense. Sentencing

Tr. at 31. With regard to count one (production), the District Court sought to account

for the fact that Dusty was only four years old at the time she was exploited by

Garnette. Garnette argues that Dusty's age was already accounted for by the

guidelines and that the District Court was therefore unreasonable in considering it

when imposing an upward variance. We disagree. While § 2G2.1(b)(1) of the

guidelines provides for a two-level enhancement when the victim is between the ages

of sixteen years and twelve years, and a four-level enhancement (which Garnette

received) when the victim is under the age of twelve years, the guidelines provide no

further age-based enhancements for victims significantly younger than twelve years.

The § 2G2.1(b)(1) adjustment for victims under twelve years does not account for the

particularly vulnerable state that Dusty was in, given her age at the time of the abuse.

At four years old, Dusty was not able to stop Garnette from holding her on his lap and

exposing her genitalia, nor was she able to fully articulate Garnette's actions towards

her. The degree of helplessness faced by Dusty was far greater than would be faced

by an older child, and it was not erroneous for the District Court to consider the
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especially young age of the victim in considering the nature of Garnette's offense.

Moreover, in addition to accounting for Dusty's age, the District Court found that a

longer sentence was necessary to adequately address and punish Garnette's attempt to

trade or sell Dusty for an older child. Garnette does not address the court's

consideration of this particularly egregious conduct in imposing the § 3553(a)

variance. 

With regard to count two (distribution), the District Court remarked that a long

sentence was necessary to adequately address and punish the heinous level of sadism

involved in the images and videos of child pornography found on Garnette's computer.

While § 2G2.2(b)(3) of the guidelines provides for a four-level enhancement (which

Garnette received) when the material distributed portrays sadistic or masochistic

conduct, the probation officer who prepared the PSR stated that "[t]he images and

video clips the defendant possessed involved levels of sadism and cruelty far beyond

what this Probation Officer typically witnesses in reviewing the discovery materials

and applying the enhancement for § 2G2.2(b)(3)." PSR ¶ 144. Given the

extraordinary nature of the material involved in this case, the District Court did not

abuse its discretion by considering the degree of heinousness as part of its § 3553(a)

analysis. 

Third, the District Court determined that the upward variance was necessary to

protect the public. Applying § 3553(a)(2)(B), the District Court stated that a longer

sentence would deter the criminal conduct of others, at least in theory. And applying

§ 3553(a)(2)(C), the court stated that the longer Garnette was incarcerated, the longer

the public would be protected from additional crimes that he might commit. The

District Court specifically noted that Garnette was a diagnosed pedophile with a

medium-risk of re-conviction. The District Court was also concerned by Garnette's

admission that he would have committed worse offenses had he not been arrested.

The District Court did not abuse its discretion in making these determinations. 
4

Garnette also asserts that the District Court varied from the guidelines

sentencing range based on the fact that Garnette distributed "pedophilia pornography."

Appellant's Br. at 11. Our review of the sentencing transcript, however, reveals that

the District Court simply used the term "pedophilia pornography" in describing the

circumstances of Garnette's offense, not in explaining its reasons for the § 3553(a)

variance. Sentencing Tr. at 31.

5

While Garnette argues that his sentence is "disproportionately higher than other

sentences in cases very similar to his," Appellant's Br. at 12, he has not cited (and we

have not found) any other case involving circumstances similar to those here—such

as the unprosecuted attempt to sell a young child for sexual purposes. We note that,

under 18 U.S.C. § 2251A, any person having custody or control of a minor who offers

to sell the minor with the knowledge that, as a consequence of the sale, the minor will

be the subject of child pornography is subject to a thirty-year minimum sentence.

Moreover, Garnette's sentence is lower than the 270-month sentence (a 50% increase

from the guidelines sentence) recently upheld in United States v. Meyer, 452 F.3d

998, 999-1000 (8th Cir. 2006) (involving the use of a child to produce sexually

explicit material). 

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Finally, applying § 3553(a)(2)(D), the District Court found that the 255-month

sentence would permit Garnette to receive both psycho-sexual and substance-abuse

treatment. The District Court recommended that Garnette serve his sentence at the

Federal Correctional Institute in Butner, North Carolina, where both types of treatment

are available.4

 

We conclude that the reasons given by the District Court were appropriate and

sufficient to justify the upward variance. We find the 255-month sentence reasonable

in light of the extraordinary facts of this case.5
6

Although Garnette's sentencing motion requested either a downward departure

pursuant to guidelines § 5K2.13 or a downward variance pursuant to 18 U.S.C.

§ 3553(a), the District Court only used the term "downward departure" in its ruling.

It is clear from the record, however, that the District Court also considered—and

denied—Garnette's request for a downward variance. Immediately prior to ruling, the

District Court noted that it "considered the defendant's arguments made in his

sentencing memorandum." Sentencing Tr. at 30. In addition, the sentence imposed

indicates that the District Court was not inclined to vary downward in sentencing

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III.

Garnette next argues that the District Court erroneously concluded that it had

no authority to consider the fact that Garnette endured extraordinary sexual abuse as

a child. Garnette asserts that the District Court should have considered his personal

history of abuse and either granted a downward departure from the guidelines

pursuant to guidelines § 5K2.13 (diminished capacity of the defendant) or decreased

his sentence pursuant to the factors in 18 U.S.C. § 3553(a). 

We find no merit to Garnette's argument that the District Court was unaware of

its authority to grant a departure or a variance on this basis. At the sentencing hearing,

the District Court stated, 

I have considered the defendant's arguments made in the sentencing

memorandum, and while in certain types of cases extraordinary abuse as

a child might be a basis for making a downward departure, I am not at

all satisfied that it works in a case like this. I think what happened to

him as a child no doubt was a contributing factor, if not the primary

factor, in bringing about his own conduct as an adult; but that cannot

justify a lower sentence in my opinion than is otherwise appropriate.

Sentencing Tr. at 30. This commentary convinces us that the District Court

recognized that it was not foreclosed from considering Garnette's childhood

experiences when imposing his sentence.6

 Indeed, the court specifically noted that
Garnette. As we held above, Garnette's 255-month sentence was reasonable under

§ 3553(a).

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"extraordinary abuse of as a child might be a basis for making a downward departure."

Id. The District Court also went on to discuss—and factually distinguish—two cases

that recognized a downward departure might be appropriate when a defendant has

suffered exceptional abuse as a child. Nevertheless, the court concluded that, in its

"opinion" (a term indicating that the court was exercising discretion), Garnette's past

abuse did not "justify" a reduced sentence. Id. The court thus acknowledged that a

downward departure or variance was available in an appropriate case, but found that

it was not justified in this case. When a district court recognizes that it has the

discretionary authority to depart downward, its "decision not to depart downward is

unreviewable." United States v. Frokjer, 415 F.3d 865, 875 (8th Cir. 2005).

IV.

For the foregoing reasons, the judgment of the District Court is affirmed.

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