In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-1643

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

ROBERT J. WACHOWIAK, JR.,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 05 CR 22—Lynn Adelman, Judge.

____________

ARGUED NOVEMBER 1, 2006—DECIDED AUGUST 1, 2007

____________

Before KANNE, EVANS, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Judge Adelman sentenced 24-

year-old Robert Wachowiak to 70 months’ imprisonment

for downloading and electronically “sharing” child pornography on his home computer. Wachowiak’s sentence is

considerably less than his advisory guidelines range of

121 to 151 months, and the government submits it is

unreasonably low in light of the sentencing factors in 18

U.S.C. § 3553(a). In addition to discounting the seriousness of Wachowiak’s offense, the government argues, the

judge deviated from the sentencing guidelines on the

basis of mitigating factors routinely present in child

pornography possession cases or already reflected in

Wachowiak’s guidelines range. A 70-month sentence, the
2 No. 06-1643

government maintains, lies beyond the outer limit of the

district court’s post-Booker sentencing discretion.

We affirm. Although lenient, this below-guidelines

sentence survives review for reasonableness, a deferential

standard that has both procedural and substantive

aspects. See Rita v. United States, 127 S. Ct. 2456, 2465,

2468-70 (2007); United States v. Wallace, 458 F.3d 606,

609-10 (7th Cir. 2006). The government concedes that

Judge Adelman explicitly considered the litany of factors

specified in § 3553(a), including the nature and severity of

the crime, Wachowiak’s history and characteristics, the

advisory guidelines range, and the purposes of sentencing

enumerated in § 3553(a)(2). The challenge mounted here

is substantive, not procedural. We conclude that Judge

Adelman’s reasons for selecting a 70-month sentence—

Wachowiak’s “excellent” character, genuine remorse,

susceptibility to treatment, low risk of recidivism, strong

family support, and certain mitigating aspects of his

offense—are rooted in § 3553(a), sufficiently individualized to the circumstances of this case, and generally

associated with sentencing leniency. Given the seriousness

of this crime, we might not have weighed these factors so

heavily, but we cannot say Wachowiak’s sentence is

unreasonable.

I. Background

Wachowiak first came to the government’s attention in

2004 when an undercover agent in Florida logged on to a

popular file-sharing network and found numerous images

of child pornography being “shared” from an IP address

in Milwaukee. The government traced the IP address to

Wachowiak’s home computer, obtained a search warrant

for his home, and seized his computer and external hard

drive. Forensic examination of the computer and hard

drive revealed hundreds of images of child pornography,
No. 06-1643 3

nine depicting children in bondage and nineteen depicting

children under the age of ten. Wachowiak was interviewed and admitted to using the network to receive and

share child pornography files.

Wachowiak pleaded guilty to one count of receiving

child pornography in violation of 18 U.S.C. § 2252(a)(2),

which carries a 5-year minimum and 20-year maximum

sentence. His uncontested presentence report calculated

an advisory guidelines sentencing range of 121 to 151

months. His offense level of 32 reflected 13 points worth of

enhancements for using a computer, possessing images

of prepubescent children, possessing images portraying

sadism or masochism, and possessing more than 600

images. Wachowiak also received a three-point reduction

for acceptance of responsibility. This was his first offense,

so his criminal history was Category I.

At sentencing Wachowiak argued for the statutory

minimum, 60 months, while the government asked for a

guidelines sentence. Judge Adelman settled on 70 months,

concluding the guidelines range of 121 to 151 months

was greater than necessary to achieve the sentencing

purposes of § 3553(a). In his oral sentencing remarks

and later in a written opinion, the judge explained that

he had rejected Wachowiak’s proposed 60-month sentence

as too low given the number and nature of the images,

some of which depicted very young children, sadistic

conduct, and known victims of sexual exploitation. United

States v. Wachowiak, 412 F. Supp. 2d 958, 960 (E.D. Wis.

2006). The judge nevertheless found that several factors

mitigated the severity of Wachowiak’s offense, specifically:

(1) Wachowiak never enticed or had improper contact

with any child; (2) he was extremely cooperative with the

government and gave a prompt and detailed confession;

and (3) he never produced or purposely distributed any

images (although he did “share” them through the filesharing program). Id.
4 No. 06-1643

The judge went on to describe Wachowiak’s character as

“excellent,” noting that (1) Wachowiak had neither a

criminal record nor a history of drug use; (2) he was an

honor roll student in high school; (3) he was a talented

pianist employed as a liturgical musician and was pursuing a bachelor’s degree in music education; (3) after

resigning his liturgical music position following his

arrest, he obtained a job as a bakery clerk at a local

grocery; and (4) all of his employers “thought highly of

him.” Id. Judge Adelman also relied heavily on the opinions of two sex offender specialists who examined

Wachowiak and assessed his recidivism risk as low. Roger

Northway, M.S., a sex offender therapist, began treating

Wachowiak shortly after his arrest; he submitted a report

to the court based on his observations of Wachowiak

during treatment and certain risk assessment tests he

administered. Dr. Patricia Coffey, a licensed psychologist

with expertise in sex predator evaluations for the State of

Wisconsin, also examined Wachowiak. Both experts

reported that Wachowiak posed a low risk for direct sexual

contact with children and was a good candidate for treatment because he understood his impulses were wrong

and wanted to control them. Id. at 961.

The judge also took note of the quality of Wachowiak’s

allocution, characterizing it as genuinely remorseful,

reflecting “insight into his behavior” and “progress in

treatment.” Id. Wachowiak, the judge said, “was making

every effort to combat his addiction to pornography and

remain crime-free.” Id. at 962. Finally, Judge Adelman

cited Wachowiak’s supportive family and friends who

would assist in his rehabilitation.

Judge Adelman then explained why he thought a 70-

month sentence better fulfilled the statutory sentencing

purposes of § 3553(a) than a guidelines sentence. The

latter, he concluded, would be greater than necessary to

promote respect for the law and provide just punishment,
No. 06-1643 5

1 Later in his opinion, the judge discussed but ultimately

declined to consider Wachowiak’s argument that a belowguidelines sentence was necessary under 18 U.S.C. § 3553(a)(6)

to account for unwarranted sentence disparities among federal and state defendants convicted of similar crimes. United

States v. Wachowiak, 412 F. Supp. 2d 958, 965 (E.D. Wis. 2006).

§ 3553(a)(2)(A), given Wachowiak’s lack of criminal history

and what the judge viewed as the mitigated seriousness

of his offense. Id. The judge also concluded that 70 months

would provide “adequate deterrence” under § 3553(a)(2)(B)

because it was longer than sentences imposed on defendants for similar crimes in federal and state court.1

 The

judge said a sentence “exceeding five years would deter

others considering receiving this type of material.” Id. A

guidelines sentence of more than ten years was “greater

than necessary to protect the public” under § 3553(a)(2)(C),

the judge reasoned, because the experts concluded

Wachowiak posed little risk of recidivism or “crossing

the line” into actual improper contact with children.

Lastly, the judge said a guidelines sentence would

unduly delay Wachowiak’s access to treatment. See

§ 3553(a)(2)(D).

Finally, Judge Adelman explained several aspects of

Wachowiak’s case that he believed were appropriate

considerations under § 3553(a) but were not adequately

factored into the guidelines calculation. First, he said

the guidelines failed to fully account for Wachowiak’s

“sincere expression of remorse” and “otherwise outstanding character” by narrowly channeling these considerations into Wachowiak’s “acceptance of responsibility”

reduction under U.S.S.G. § 3E1.1 and criminal history

Category I, respectively. Wachowiak, 412 F. Supp. 2d at

963. Second, the judge said “the guidelines failed to

account for the significant collateral consequences

[Wachowiak] suffered as a result of his conviction,”
6 No. 06-1643

namely, the stigma of being a sex offender and his inability

to pursue a career in his chosen profession of music

education. Id. at 963-64. Third, the judge believed the

guidelines failed to consider the positive role of

Wachowiak’s family members, who promised to aid in his

rehabilitation and reintegration into the community

and support his efforts to avoid reoffending. Id. at 964.

Finally, the judge noted that the probation office had

recommended that Wachowiak receive a sentence significantly below the guidelines range, which he characterized

as “unusual.” Id. at 964 n.6.

In addition to the 70-month term of imprisonment, the

judge imposed a three-year term of supervised release with

various nonstandard supervision terms. Wachowiak is

forbidden from associating with any minors without

prior approval from his probation officer. He must submit all his financial records, computer passwords and

pseudonyms, and permit periodic inspections of his

computer. He may not access the Internet from any

location without first notifying his probation officer.

The government appealed, challenging the 70-month

sentence as unreasonably low.

II. Discussion

Under the advisory guidelines regime ushered in by

United States v. Booker, we review Wachowiak’s 70-month

sentence for reasonableness. 543 U.S. 220, 261 (2005);

Rita, 127 S. Ct. at 2459. This abuse-of-discretion standard

has both procedural and substantive aspects. Rita, 127

S. Ct. at 2465, 2468-70; Wallace, 458 F.3d at 609; United

States v. Repking, 467 F.3d 1091, 1096 (7th Cir. 2006) (per

curiam). “The Supreme Court’s decision in Booker requires the sentencing judge first to compute the guidelines sentence just as he would have done before Booker,
No. 06-1643 7

2 18 U.S.C. § 3553(a) provides, in relevant part:

(a) Factors to be considered in imposing a sentence. The

court shall impose a sentence sufficient, but not greater than

necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the

particular sentence to be imposed, shall consider—

(1) the nature and circumstances of the offense and the

history and characteristics of the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to

promote respect for the law, and to provide just

punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the

defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other

correctional treatment in the most effective manner.

and then—because Booker demoted the guidelines from

mandatory to advisory status—to decide whether the

guidelines sentence is the correct sentence to give the

particular defendant.” United States v. Dean, 414 F.3d 725,

727 (7th Cir. 2005).

Booker sentencing discretion is exercised in accordance

with the sentencing factors specified in 18 U.S.C.

§ 3553(a).2

 That section, “unlike the guidelines themselves after Booker, is mandatory. The sentencing judge

cannot, after considering the factors listed in that statute, import his own philosophy of sentencing if it is

inconsistent with them.” Id. at 729 (citations omitted). But

the § 3553(a) factors are broad, vague, and open-ended, id.,

and review for reasonableness is deferential, United

States v. Walker, 447 F.3d 999, 1008 (7th Cir. 2006), so the
8 No. 06-1643

sentencing judge has considerable discretion to individualize the sentence to the offense and offender as long as the

judge’s reasoning is consistent with § 3553(a). “[T]he

sentencing statutes envision both the sentencing judge

and the [Sentencing] Commission as carrying out the

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

other at wholesale.” Rita, 127 S. Ct. at 2463.

We have previously described Booker reasonableness

review in this way:

Two things are critical now: first, whether the district

court’s choice of sentence is adequately reasoned in

light of the § 3553(a) factors . . . ; and second, whether

the sentence can ultimately be deemed a reasonable

one. . . . At each point, the focus is on what the district

court did, not on what it might have done. Thus, the

procedural inquiry focuses on the actual reasons

given, not on whether the sentence could have been

supported by a different rationale; the substantive

inquiry looks at the sentence imposed, not at all the

other hypothetical sentences that might have been

chosen.

Wallace, 458 F.3d at 609 (citations omitted). Accordingly,

a sentence is reasonable if the sentencing judge has given

meaningful consideration to the sentencing factors enumerated in § 3553(a), including the advisory sentencing

guidelines, and arrived at a sentence that is objectively

reasonable in light of the statutory factors and the individual circumstances of the case. Id. at 609-12; United States

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

414 F.3d at 729.

This obligation generally is easily discharged when the

judge chooses a sentence within a properly calculated

guidelines range, which on appeal is entitled to a presumption of reasonableness. United States v. Mykytiuk, 415 F.3d

606, 608 (7th Cir. 2005) (adopting a rebuttable presump-
No. 06-1643 9

3 To the extent some of our cases have suggested that the

appellate presumption of reasonableness for within-guidelines

(continued...)

tion of reasonableness for within-guidelines sentences); see

also United States v. Laufle, 433 F.3d 981, 987 (7th Cir.

2006) (explaining the sentencing judge need only give a

concise statement of reasons when imposing a withinguidelines sentence). We now know that the rebuttable

presumption of reasonableness we adopted in Mykytiuk

comports with the Sixth Amendment and the Supreme

Court’s substantive and remedial opinions in Booker. Rita,

127 S. Ct. at 2465-67.

The Court emphasized in Rita, however, that the

presumption it was approving “is an appellate court

presumption.” Id. at 2465 (emphasis in original); see also

United States v. Griffin, Nos. 05-4177 & 05-4178, 2007 WL

2027411, at *10 (7th Cir. July 16, 2007). The Court held

that because reasonableness review under Booker “merely

asks whether the trial court abused its discretion,” the

presumption of reasonableness for within-guidelines

sentences “applies only on appellate review.” Rita, 127

S. Ct. at 2465. In the district court, the sentencing decision is subjected to “the thorough adversarial testing

contemplated by federal sentencing procedure . . . [and]

does not enjoy the benefit of a legal presumption that

the Guidelines sentence should apply.” Id. (citations

omitted). Accordingly, while an appellate court may apply

a nonbinding presumption of reasonableness to a guidelines sentence, the district court’s Booker sentencing

discretion presupposes no thumb on the scale in favor of

a guidelines sentence.

Rita thus validated our observation in United States v.

Demaree that the sentencing judge “is not required—or

indeed permitted—to ‘presume’ that a sentence within the

guidelines range is the correct sentence3

.” 459 F.3d 791,
10 No. 06-1643

3 (...continued)

sentences also applies as a “benchmark” or “presumption” in the

district court, United States v. Hankton, 463 F.3d 626, 629 (7th

Cir. 2006); United States v. Wurzinger, 467 F.3d 649, 650-51 (7th

Cir. 2006), that suggestion has been displaced by Rita.

794-95 (7th Cir. 2006) (citation omitted); see also

Cunningham, 429 F.3d at 676 (The sentencing court

“cannot treat all sentences that would fall within the

guidelines sentencing range as reasonable per se.”).

Although “[t]he applicable guideline nudges [the sentencing judge] toward the sentencing range, . . . his freedom to

impose a reasonable sentence outside the range is unfettered.” Demaree, 459 F.3d at 795. That a within-guidelines

sentence is presumed reasonable on appeal does not mean

that a sentence outside the range is presumptively unreasonable. United States v. Jordan, 435 F.3d 693, 698 (7th

Cir. 2006); United States v. Howard, 454 F.3d 700, 703

(7th Cir. 2006). Rita also held that “appellate courts

may not presume that every variance from the advisory

Guidelines is unreasonable.” 127 S. Ct. at 2467.

Although as a matter of procedural reasonableness the

sentencing court is not required to issue a detailed oral or

written opinion in every case, “a statement of reasons

[for the choice of sentence] is important.” Id. at 2468.

Whether imposing a sentence within or outside the

advisory guidelines range, the sentencing judge should at

least “set forth enough to satisfy the appellate court that

he has considered the parties’ arguments and has a

reasoned basis for exercising his own legal decisionmaking

authority.” Id.

We have held that sentences outside the applicable

guidelines range—whether above or below it—may be

upheld as reasonable as long as the district court’s

§ 3553(a) explanation is sufficiently compelling to justify
No. 06-1643 11

the variance. Dean, 414 F.3d at 729. At a minimum, this

explanation should articulate the statutory factors the

judge believes warrant a sentence above or below the

guidelines range. Id. The more extreme the variance,

however, “the more compelling the justification based on

factors in § 3553(a) that the judge must offer in order

to enable [us] to assess the reasonableness of the sentence imposed.” Id. If the justification is consistent with

§ 3553(a) and reasonably corresponds to factors unique to

the defendant (i.e., not normal incidents of the offense

or the judge’s wholesale disagreement with the guidelines), and the sentence chosen is within the broad range

of objectively reasonable sentences in the circumstances,

the sentence will be affirmed. See Wallace, 458 F.3d at

611; Repking, 467 F.3d at 1096; Dean, 414 F.3d at 729.

As we have noted, the government does not argue that

the sentence imposed here fails procedural review for

reasonableness. Nor could it. Judge Adelman’s oral

sentencing remarks and follow-up written opinion thoroughly and meaningfully analyzed the § 3553 factors,

including the sentencing guidelines. He carefully and at

length explained his choice of a 70-month sentence over a

guidelines sentence. There is no suggestion the judge

considered impermissible factors or that his factfinding

was clearly erroneous in any respect. The government

argues the judge’s statement of reasons was flawed, not

insubstantial. As such, we understand the government to

be challenging this sentence as substantively unreasonable—simply too great a deviation from the bottom of the

applicable guidelines range given the seriousness of the

offense and what it views as a lack of unique justification.

While the contours of substantive reasonableness review are still emerging, we have previously analogized it

to the “unreasonableness” standard in the Antiterrorism

and Effective Death Penalty Act (“AEDPA”), 28 U.S.C.
12 No. 06-1643

§ 2254(d), which permits federal courts to grant habeas

relief for state prisoners only when the state-court decision

under review was “contrary to, or involved an unreasonable application of” clearly established federal law,

§ 2254(d)(1), or “was based on an unreasonable determination of the facts,” § 2254(d)(2). Wallace, 458 F.3d at

610. In the AEDPA context, we have held that an “unreasonable” application of federal law is one that lies “well

outside the boundaries of permissible differences of opinion.” Id. (quoting Hardaway v. Young, 302 F.3d 757, 762

(7th Cir. 2002)). Conversely, an application of federal law

will be upheld as reasonable under the AEDPA “if it was

‘one of several equally plausible outcomes.’ ” Id. (quoting

Hall v. Washington, 106 F.3d 742, 749 (7th Cir. 1997)).

We also noted in Wallace and other cases that substantive reasonableness review distinguishes between common

and particularized factors. Id. at 611; Jordan, 435 F.3d

at 696-97; Dean, 414 F.3d at 729 (sentencing judge should

supply “an adequate statement of the judge’s reasons,

consistent with section 3553(a), for thinking the sentence

that he has selected is indeed appropriate for the particular defendant”). A nonguidelines sentence premised on

factors that are common to offenders with like crimes may

reflect a simple disagreement with the guidelines; “Booker

did not authorize courts to find that the guidelines themselves (or the statutes on which they are based) are unreasonable.” Wallace, 458 F.3d at 611 (citing United States v.

Miller, 450 F.3d 270, 275 (7th Cir. 2006) and United States

v. Gipson, 425 F.3d 335, 337 (7th Cir. 2005)). On the

other hand, a variance from the guidelines that is sufficiently particularized to the individual circumstances of

the case and not disproportionate to the strength of the

reasons for varying likely will survive reasonableness

review. See Jordan, 435 F.3d at 696-97 (affirming a

sentence well above the guidelines range for traveling in

interstate commerce to engage in a sex act with a minor
No. 06-1643 13

where the district court identified numerous highly

aggravating circumstances particular to defendant’s case);

United States v. Baker, 445 F.3d 987, 991-92 (7th Cir.

2006) (affirming a below-guidelines sentence for distribution of child pornography where the district court provided

an “extended discussion” of mitigating factors specific to

the defendant’s case).

The concept of substantive reasonableness contemplates

“a range, not a point.” Cunningham, 429 F.3d at 679. That

said, we have declined invitations to fix the outer limits

of the “reasonableness range” by reference to a ratio or

percentage by which the sentence deviates from the

guidelines range. Repking, 467 F.3d at 1095; Wallace,

458 F.3d at 613. We will not substitute our judgment for

that of the sentencing court. United States v. Ngatia, 477

F.3d 496, 501-02 (7th Cir. 2007) (“[T]he district court’s

choice of sentence, whether inside or outside the

guideline[s] range, is discretionary and subject therefore to

only light appellate review.” (citing Demaree, 459 F.3d at

795)); United States v. Williams, 425 F.3d 478, 481 (7th

Cir. 2005) (“The question is not how we ourselves would

have resolved the factors identified as relevant by section

3553(a) . . . . We are not sentencing judges.” (citation

omitted)). As with other discretionary decisions, the

district court is institutionally better situated to make

individualized sentencing judgments than an appellate

panel. Koon v. United States, 518 U.S. 81, 98 (1996);

Walker, 447 F.3d at 1008; Williams, 425 F.3d at 480.

The following examples of below-guidelines sentences

vacated as unreasonable by panels of this court may help

illustrate the limits of Booker sentencing discretion in

this circuit:

1) In United States v. Goldberg, No. 07-1393, 2007 WL

1827645 (7th Cir. June 27, 2007), we vacated as

unreasonable a sentence of one day in prison and ten
14 No. 06-1643

years’ supervised release in a child pornography

possession case where the guidelines range was 63 to

78 months and the district court’s reasons were at best

idiosyncratic and at worst deeply flawed. “A prison

sentence of one day for a crime Congress and the

American public consider grave, in circumstances that

enhance the gravity (we refer to the character of some

of the images) [depicting prepubescent girls being

vaginally raped by adult males], committed by a

convicted drug offender, does not give due weight to

the ‘nature and circumstances of the offense’ and the

‘history and characteristics of the defendant.’ ”

Goldberg, 2007 WL 1827645, at *3. In Goldberg, the

district court’s reasoning reflected serious misjudgments about the gravity of the offense and the defendant’s character and motivations, and the one-day

sentence was too severely disproportionate to the

guidelines range in the circumstances to withstand

reasonableness review.

2) In United States v. Roberson, 474 F.3d 432 (7th Cir.

2007), we vacated as unreasonable a sentence of one

month for an armed bank robbery and 84 months

consecutive on the companion gun charge. The applicable guidelines range for the armed robbery was 46 to

57 months, and the 84-month consecutive sentence

for the gun offense was the mandatory minimum. The

district judge’s sentencing remarks reflected that

she was improperly influenced by her disagreement

with the statutory mandatory consecutive minimum

term on the gun offense and the prosecutor’s decision

to charge it. Id. at 434-35. Further, the mitigating

factors cited by the district court—the defendant’s

youth (he was 19 years old), good performance in

elementary school, and supportive family—were either

too “meager” or “two-edged” to support such a de

minimis sentence for an armed robbery. Id.
No. 06-1643 15

3) In Repking, 467 F.3d at 1091, we vacated as unreasonable a sentence of one day in prison and three

years’ supervised release for a wealthy bank executive

who misappropriated nearly $1 million in bank funds

by making false banking entries. The defendant was

also convicted of filing a false tax return, and his

applicable guidelines range for these offenses was 41

to 51 months. Although we found the district court’s

sentencing remarks to be procedurally adequate, we

concluded that the judge drastically overvalued the

mitigating factors (the defendant’s charitable works

and payment of restitution) and undervalued the

seriousness of the crime.

4) In Wallace, 458 F.3d at 606, we vacated as unreasonable a sentence of three years’ probation for a wire

fraud involving $400,000 of intended loss where the

applicable guidelines range was 24 to 30 months in

prison. We said the mitigating factors identified by the

district court were permissible (the defendant’s

“extraordinary remorse” and cooperation and otherwise law-abiding life) but did not justify such remarkable leniency. Id. at 613. “In the end, it is the fact

that the court chose to eliminate any meaningful

incarceration for a crime that involved $400,000 of

intended loss that makes this such an extraordinary

choice.” Id. at 614.

On the other hand, in Baker, this court affirmed a belowguidelines sentence of 87 months for distribution of child

pornography where the applicable guidelines range was

108 to 135 months. 445 F.3d at 987. We noted that “the

district court paid close attention to Mr. Baker’s lack of a

criminal history, his relatively young age, his religious

background and his history of employment and higher

education.” All of these factors, we held, were permissible

and adequately linked to § 3553(a) for the district court

to rely on them in arriving at a below-guidelines sen-
16 No. 06-1643

tence. Id. at 992. In affirming the 87-month sentence, the

Baker panel observed that the district court’s deviation

from the guidelines range was “sufficiently proportional”

to the strength of its reasons for deviating. Id. at 993. That

is, the variance from the guidelines range was not so

disproportionate to the factors justifying it as to make it

unreasonable. And in Ngatia, 477 F.3d at 501-02, we

affirmed a below-guidelines sentence of 84 months for

heroin importation. Although the sentence in Ngatia

was substantially lower than the guidelines range of 188

to 235 months, we affirmed the district court’s exercise of

Booker discretion, which rested primarily on the defendant’s good character, sincere remorse, educational

achievements, and rehabilitative efforts.

In Goldberg, Roberson, Repking, and Wallace, the belowguidelines sentences were fairly obviously unreasonable,

imposing little or no imprisonment for quite serious

crimes, on very weak or (as in Goldberg and Roberson)

seriously misguided or even impermissible reasoning. We

see this case as closer to Baker, and to a lesser extent

Ngatia. Here, as required by § 3553(a)(1), Judge Adelman

evaluated the nature and circumstances of Wachowiak’s

offense, acknowledging the severity of the offense of

receiving child pornography and noting that consumers

of child pornography like Wachowiak share responsibility

with its producers for the harm inflicted on its young

victims. He also duly noted the quantity and nature of

some of Wachowiak’s images as aggravating circumstances. On balance, however, the judge believed the

mitigating circumstances of the offense outweighed the

aggravating. Wachowiak neither produced nor purposely

distributed any of the images and never enticed or had

any improper contact with a child. He cooperated with

the government, gave a detailed confession, expressed

sincere remorse, sought treatment, and pleaded guilty in

a timely fashion.
No. 06-1643 17

The government argues the judge gave too much weight

to these factors in mitigation and notes that Wachowiak’s

cooperation, remorse, and guilty plea are already accounted for in the guidelines calculation. It is true that

a defendant’s cooperation, remorse, and prompt guilty

plea are factored into the acceptance-of-responsibility

adjustment, but we said in Wallace that “[i]f Booker means

anything at all, it must mean that the court was permitted to give further weight to a factor covered by a specific

guidelines adjustment, especially where (as is true here)

that factor is present to an exceptional degree or in some

other way makes the case different from the ordinary case

where the factor is present.” 458 F.3d at 613 (quotations

omitted). Judge Adelman thought Wachowiak’s “greater

expression of remorse” and “insight into his condition and

the harm he was causing children” deserved more weight,

a permissible discretionary judgment post-Booker.

Judge Adelman’s reliance on the fact that the defendant

did not commit a more serious crime strikes us as questionable, however. In the first place, the judge’s duty is to

address the crime the defendant did commit. As importantly, the Sentencing Commission sets and adjusts the

guidelines ranges with the specific objective of achieving

proportionality in sentencing for crimes of differing

severity. Rita, 127 S. Ct. at 2464. The Commission is “a

respected public body with access to the best knowledge

and practices of penology,” Goldberg, 2007 WL 1827645, at

*5; its judgments should not lightly be disregarded. The

expert witnesses who evaluated Wachowiak’s recidivism

risk assigned some relevance to the fact that Wachowiak

had not escalated to “hands-on” sex offending; we think

this factor was more appropriately considered as an

offender characteristic than an offense characteristic.

Judge Adelman also considered at length Wachowiak’s

history and characteristics as required by § 3553(a)(1).

He heard (through testimony and letters) from one of
18 No. 06-1643

4 The government argues that the expert evidence about

Wachowiak’s risk to reoffend was “inconclusive at best” because

Wachowiak had tried before to overcome his child pornography

consumption but failed, and because the risk instruments

administered by Wachowiak’s therapist, Mr. Northway, were not

specifically designed for offenders who had not committed a

“hands-on” offense. These are not arguments for a reviewing

court; the sentencing judge was entitled to accept the experts’

opinions and give them the weight he thought they deserved.

Wachowiak’s college professors, two of his aunts, his

mother, his grandmother, and his girlfriend, all of whom

spoke highly of his character and pledged their continued

support for him. The judge also considered the opinions

of the two experts (a sex offender counselor and a licensed

psychologist) who reported that Wachowiak posed little

risk of reoffending, was motivated to change, and was a

good candidate for treatment.4

 The judge noted

Wachowiak’s academic accomplishments and musical

talent, as well as the positive references provided by his

past employers. Together with Wachowiak’s lack of

criminal history and genuine remorse, these factors

convinced the judge of Wachowiak’s “excellent” character,

amenability to treatment, and low recidivism risk.

Again, while Wachowiak’s guidelines range accounted

for some of these mitigating personal characteristics, the

judge believed the guidelines painted only a partial picture

of Wachowiak’s character and the need for punishment

and deterrence (both specific and general) in this case.

Judge Adelman said his assessment of Wachowiak’s

“history and characteristics” under § 3553(a)(1) encompassed more than tallying prior convictions to yield a

criminal history score. In addition to Wachowiak’s lawabiding past and sincere remorse, the judge found that he

was “a kind, caring individual, who enjoyed the broad

support of family, friends, colleagues, and teachers” and
No. 06-1643 19

“demonstrated strength of character in confronting his

problems,” none of which were reflected in Wachowiak’s

Category I criminal history under the guidelines. The

government counters that Wachowiak’s lack of criminal

history and expressions of remorse are common to many

child pornography offenders and thus do not warrant an

exceptional sentence. While Wachowiak may be a typical

offender in some respects, Judge Adelman sufficiently

explained why in his judgment, Wachowiak’s degree of

remorse and his otherwise good character set him apart

from more run-of-the-mill child pornography offenders.

In short, Judge Adelman methodically worked through

the statute, ultimately concluding that 70 months sufficiently punished Wachowiak, reflected the seriousness of

his offense, promoted deterrence, protected the public, and

ensured prompt treatment, all considerations required

by § 3553(a)(2). While we might disagree with some of

Judge Adelman’s reasons for selecting a below-guidelines

sentence, they are not wrongheaded to the point of unreasonableness, as in Goldberg and Roberson. They were, for

the most part, specific to Wachowiak (that is, not routine

in all or most child pornography possession cases) and

generally correspond to leniency in sentencing. The judge

gave meaningful consideration to the guidelines range

and explained at length why he felt Wachowiak deserved

less.

This is not a case in which the judge manifested disagreement with the culpability assumptions built into the

guidelines, a prototypically unreasonable exercise of

Booker sentencing discretion. United States v. Gonzalez,

462 F.3d 754, 755 (7th Cir. 2006); United States v. Miller,

450 F.3d 270, 275-76 (7th Cir. 2006); Wallace, 458 F.3d at

612-13. Nor is this a case in which the judge deviated

from the guidelines solely on the basis of overstated

mitigating factors or “normal incidents” of the offense.

Repking, 467 F.3d at 1096. Judge Adelman did refer to one
20 No. 06-1643

normal incident of a child pornography conviction—the

social stigma of being a sex offender—as a “collateral

consequence” the guidelines failed to take into account.

Were this his only or primary reason for deviating

from the guidelines we might be more skeptical of the

sentence’s reasonableness, as stigma and child pornography convictions go hand in hand. But this was just one of

many reasons the judge gave for this below-guidelines

sentence.

At bottom, the government believes 70 months does not

adequately reflect the seriousness of Wachowiak’s offense.

If we were sentencing Wachowiak, we might agree. But

our task on reasonableness review is limited; we are to

ensure that “the district judge imposed the sentence for

reasons that are logical and consistent with the § 3553(a)

factors,” Williams, 425 F.3d at 781, and that the sentence

imposed falls within the broad range of reasonable sentences in the circumstances of the case. A one-day sentence for a millionaire bank executive who stole nearly

$1 million fell outside that range, Repking, 467 F.3d at

1096 (advisory guidelines range of 41 to 51 months), as

did a sentence of probation for a brokerage employee

who embezzled $400,000, Wallace, 458 F.3d at 606 (advisory guidelines range of 24 to 30 months). A one-day

sentence for possession of hundreds of highly aggravated

images of child pornography fell outside that range,

Goldberg, 2007 WL 1827645, at *1, *3 (advisory guidelines

range of 63 to 78 months), as did a sentence of one month

for armed bank robbery, Roberson, 474 F.3d at 437 (advisory guidelines range of 46 to 57 months). This sentence of

70 months for receiving child pornography, though certainly lenient given the seriousness of the crime, lies

tolerably within the boundaries of permissible differences

of judicial opinion.

Booker sentencing discretion is inevitably in tension

with the congressional goals of achieving greater unifor-
No. 06-1643 21

mity and proportionality in sentences through a system of

guidelines sentencing. Rita, 127 S. Ct. at 2464. But we do

not understand Booker’s review-for-reasonableness standard to empower us to displace district court sentencing

judgments more aggressively than traditional abuse-ofdiscretion principles normally would allow. See United

States v. Pruitt, 487 F.3d 1298, 1319-20 (10th Cir. 2007)

(McConnell, J., concurring) (discussing the limits of

appellate review for reasonableness, observing that

“appellate courts . . . have neither the district court’s

familiarity with individual circumstances nor the [Sentencing] Commission’s expertise and democratic warrant to

set policy”). On this understanding of reasonableness

review, Wachowiak’s 70-month sentence is not unreasonable.

AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-1-07