In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-2698

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GILBERT W. ALLDAY,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 2:06 CR 216-01—Rudy Lozano, Judge.

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ARGUED MAY 5, 2008—DECIDED SEPTEMBER 5, 2008

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Before CUDAHY, POSNER, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. Gilbert W. Allday pleaded

guilty to one count of violating 18 U.S.C. § 2252(a)(2) by

receiving sexually explicit images and videos of minors

on his home computer. The district court sentenced him

to 97 months imprisonment, the bottom of the 97 to 121-

month range recommended by the United States Sentencing Guidelines. He appeals, arguing that the district

court improperly applied a presumption in favor of the
2 No. 07-2698

Guidelines at sentencing. Because we do not believe

the district court applied such a presumption, we affirm

his conviction and sentence.

I.

A devoted and by all accounts loving father and grandfather, Gilbert Allday is hardly a man one would expect

to find sentenced to eight years in federal prison for

receiving child pornography. Expectations aside, in

January 2004 Allday began looking at pornographic web

sites while surfing the Internet. From there, Allday began

visiting web sites depicting minor children engaged in

sexual acts. By August 2005, Allday had amassed some

541 still images and 82 movie files depicting minors

engaged in sexually explicit conduct.

Allday pleaded guilty without the benefit of a plea

agreement to violating 18 U.S.C. § 2252(a)(2), which

prohibits the knowing receipt of any image of a minor

engaging in sexual conduct that has been transported in

interstate commerce and “the producing of such visual

depiction involves the use of a minor engaging in

sexually explicit conduct.” That statute carries a five-year

mandatory minimum term of imprisonment. 18 U.S.C.

§ 2252(b)(2). Before sentencing, Allday submitted a sentencing memorandum in which he argued that he should

be sentenced to the five-year mandatory minimum. He

emphasized the fact that he was 64 years old and suffering

from a number of health problems, including sleep apnea

that required nightly monitoring with a machine, a heart

condition, and diabetes. He also argued that his stable
No. 07-2698 3

work history (41 years as a Union laborer), military service,

and first-time offender status all militated in favor of a

five-year sentence. Finally, he submitted a number of

letters from his step-children and grandchildren, all

attesting to the fact that he was a loving and supportive

father and grandfather. The district court instead sentenced Allday to 97 months imprisonment, the bottom of

the undisputed 97 to 121-month Guideline range.

II.

On appeal, Allday argues that the district court erroneously applied a presumption of reasonableness to the

Guidelines at sentencing. We review de novo the issue

of whether the district court followed the proper sentencing procedures in the wake of United States v. Booker, 543

U.S. 220 (2005). United States v. Mendoza, 510 F.3d 749, 754

(7th Cir. 2007). Although the Supreme Court in Rita v.

United States approved of an appellate presumption of

reasonableness for sentences within a properly calculated

Guidelines range, the Court clarified that “the sentencing

court does not enjoy the benefit of a legal presumption

that the Guidelines sentence should apply.” 127 S. Ct. 2456,

2465 (2007). Instead, the district court is ordinarily

obliged to first consider the presentence report and its

calculation of the Guidelines and then consider the respective parties’ arguments as to whether the Guidelines

sentence should apply, id., all “without any thumb on the

scale favoring a guideline sentence,” United States v.

Sachsenmaier, 491 F.3d 680, 685 (7th Cir. 2007).
4 No. 07-2698

Allday believes several comments that the sentencing

judge made at Allday’s change of plea hearing and at

sentencing demonstrate that the court employed just

such a presumption in favor of a Guidelines sentence. He

points out that at his plea hearing, the district court told

him that if it found the Guideline range “to be fair and

reasonable,” Allday would “be sentenced within that

Guideline range.” Allday also takes issue with the

district court’s conclusion that, given Allday’s offense

and the mandatory minimum sentences associated with

child pornography, the Guidelines were in fact “fair and

reasonable.” Allday argues that the sentencing judge

essentially shifted to him the burden of proving that the

Guidelines sentence was unreasonable. It is true that the

district court can neither presume the Guidelines to be

reasonable nor place the burden on the defendant to

demonstrate the unreasonableness of a Guidelines sentence. But the sentencing transcript as a whole reveals

that the district court here did neither.

The court considered the reasons advanced by Allday in

support of a lower sentence, and ultimately concluded

that a sentence within the Guidelines range was appropriate. Although the court did not explicitly reference

every sentencing factor in 18 U.S.C. § 3553(a), it is clear

from its discussion that it considered § 3553(a) as well as

Allday’s particular arguments. See, e.g., United States v.

Millet, 510 F.3d 668, 680 (7th Cir. 2007) (“Although the

defendant might have liked the court to address each of

his arguments for a below-Guidelines sentence in detail

and list each § 3553(a) factor bearing on the sentencing

determination, the court was not required to do so.”). First,
No. 07-2698 5

the district court considered the nature of Allday’s offense.

The court took note of the large number of pornographic

images Allday had amassed and the resulting real-world

molestation of children in deeming Allday’s offense a

“very, very serious crime.” The court also considered the

need to deter both Allday and others from committing

crimes that “take advantage of our youth,” including

receiving child pornography, regardless of involvement

in its production. Finally, the court considered Allday’s

individual circumstances and concluded that the Guidelines were indeed “fair and reasonable.” Specifically, the

court determined that Allday’s age (64) did not warrant

a lower sentence, and in fact might make him more dangerous because society may expect him to be “gentle and

trustworthy.” The court also took into account Allday’s

health problems and concluded that the Bureau of Prisons

could adequately treat his “whole array of problems,”

including his sleep apnea and diabetes.

Given the court’s discussion at sentencing, it is clear

that it considered Allday’s argument for a lower sentence

and his particular circumstances. It is also clear that the

court recognized that the Guidelines were in no way

binding on its decision. The district court explained at

Allday’s change of plea that before deciding on a sentence,

it would consider “numerous factors.” It also explained

that a Guideline range would be calculated and that if it

found that range “to be fair and reasonable” it would

sentence Allday within that range. Immediately following

that pronouncement, however, the sentencing judge

clarified that, “[i]f I do not find it to be fair and reasonable,

I can go higher or I can go lower than that Guideline

range.” Thus, the court’s reference to the Guidelines
6 No. 07-2698

We note that Allday’s argument on appeal is limited to his 1

claim that the district court committed a procedural error at

(continued...)

being “fair and reasonable” is more properly viewed as the

court’s understanding that “the Guidelines, insofar as

practicable, reflect a rough approximation of sentences

that might achieve § 3553(a)’s objectives.” Rita, 127 S. Ct. at

2464-65. The discussion at sentencing reveals that the

sentencing judge understood his obligation to independently decide whether the Guideline sentence achieved

the goals of § 3553(a). The record reveals that the sentencing judge considered each of Allday’s arguments, and the

context of his statement makes clear that no presumption

of reasonableness was employed. Rather, the judge concluded that the reasons advanced by Allday and the

§ 3553(a) factors were insufficient to warrant a sentence

below the 97 to 121-month range. The fact that the judge

concluded after considering Allday’s arguments that the

range was “reasonable” in no way demonstrates that the

court erroneously presumed the range reasonable. See

Rita, 127 S. Ct. at 2469 (taken in context, sentencing

judge’s comment that Guidelines range “was not ‘inappropriate’ ” did not signal misunderstanding of legal standard

for imposition of sentence). In sum, we are satisfied that

the district court understood its obligation to consider

Allday’s arguments and make an “individualized assessment based on the facts presented.” Gall v. United States,

128 S. Ct. 586, 596-77 (2007). Based on that assessment,

the court concluded that the bottom of the Guideline

range represented an appropriate sentence, and we see

no reason to disturb that conclusion.1
No. 07-2698 7

(...continued) 1

sentencing by applying a presumption of reasonableness to

the Guidelines. We thus have no occasion to consider the

separate issue of whether his 97-month sentence is in fact

reasonable.

9-5-08

III.

We thus AFFIRM Allday’s conviction and sentence.