United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-1516

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri. 

Scott Kinsey Black, *

*

Appellant. *

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Submitted: December 16, 2011

Filed: March 12, 2012

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Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.

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WOLLMAN, Circuit Judge.

Scott Kinsey Black pled guilty to two counts of possession of child

pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). The district court1

sentenced him to sixty months’ imprisonment, an eighteen-month downward variance

from the United States Sentencing Guidelines (Guidelines) range. Black appeals his

sentence, arguing that the court erred in failing to consider or adequately respond to

his argument that the child pornography sentencing guidelines are overinflated. Black

further contends that his sentence is substantively unreasonable because the district

1

The Honorable Rodney W. Sippel, United States District Judge for the Eastern

District of Missouri.
court did not fully consider the 18 U.S.C. § 3553(a) factors. Finally, he argues that

the district court abused its discretion in imposing a special condition of supervised

release restricting Black’s access to the internet. We affirm.

I.

Following the entry of his guilty plea, Black filed a sentencing memorandum

with the district court, arguing that his history and characteristics and the nature of the

offense weighed in favor of a sentence of probation. The memorandum also argued

that the enhancements in the child pornography possession sentencing guidelines often

result in a sentence significantly greater than necessary to serve the statutory purposes

of sentencing.

At sentencing, the district court calculated Black’s Guidelines range to be 78

to 97 months’ imprisonment. In determining Black’s sentence, the district court stated

that the sadistic and masochistic images of children under the age of twelve found on

Black’s computer “are as bad as anything that we deal with[.]” Sentencing Tr. 18. 

After stating that it had read Black’s sentencing memorandum, the district court

discussed Black’s mental health history and his lack of criminal history and then

varied downward to a sentence of sixty months’ imprisonment. During its discussion

of the sentencing factors, the district court asked the parties if they wished to have any

other factors discussed. Neither party responded, whereupon, having determined that

a sixty-month sentence satisfied the statutory purposes of sentencing, the district court

found that the sentence as pronounced avoided an unwarranted sentencing disparity. 

The district court also sentenced Black to a lifetime of supervised release, one

condition of which was that Black not use a computer or device that has access to the

internet without the written approval of the probation office. The district court found

that this condition was appropriate in light of the fact that Black had “actively used

a retrieval computer-type device in order to execute the crime.” Sentencing Tr. 24. 

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The presentence investigation report (PSR) revealed that Black had used Limewire,

an online file sharing program, to download child pornography. Neither party

objected to the factual findings in the PSR.

II.

“In reviewing a challenge to a sentence, we ‘must first ensure that the district

court committed no significant procedural error.’” United States v. Dace, 660 F.3d

1011, 1013 (8th Cir. 2011) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). 

Failing to adequately explain a chosen sentence or failing to consider the § 3553(a)

factors constitutes procedural error. United States v. Nissen, 666 F.3d 486, 490 (8th

Cir. 2012) (citations omitted). “If a defendant fails to timely object to a procedural

sentencing error, the error is forfeited and may only be reviewed for plain error.” 

United States v. Phelps, 536 F.3d 862, 865 (8th Cir. 2008). “Under plain error review,

the defendant must show: (1) an error; (2) that is plain; and (3) that affects substantial

rights.” Id. (citations omitted). “‘An error affects a substantial right if it is

prejudicial,’ meaning that ‘there is a reasonable probability the defendant would have

received a lighter sentence but for the error.’” United States v. Maxwell, 664 F.3d

240, 246 (8th Cir. 2011) (quoting United States v. Mireles, 617 F.3d 1009, 1013 (8th

Cir. 2010)). Even if that showing is made, “[t]his court will correct such an error

‘only if it seriously affects the fairness, integrity, or public reputation of judicial

proceedings.’” Id. (quoting United States v. Starfield, 563 F.3d 673, 674 (8th Cir.

2009)). Because Black failed to object with any specificity to the district court’s

alleged failure to consider Black’s child pornography guidelines argument or to

explain in any detail the reasons for the sentence, we review his claims for plain error

only.

Black cites Rita v. United States, 551 U.S. 338 (2007), for the proposition that

when a nonfrivolous reason for imposing a different sentence is presented, the

sentencing judge “will normally . . . explain why he has rejected those arguments.” 

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Id. at 357. Yet, as we have noted, “Rita also indicates that not every reasonable

argument advanced by a defendant requires a specific rejoinder by the judge.” United

States v. Gray, 533 F.3d 942, 944 (8th Cir. 2008). “District courts generally have

discretion to decide whether to respond to every argument.” Dace, 660 F.3d at 1014

(citing Rita, 551 U.S. at 356). 

Black raised his argument regarding the child pornography guidelines in his

sentencing memorandum, but he did not reiterate it at the sentencing hearing, nor did

he ask the district court to address it. Although the district court made no specific

reference to the argument at the hearing, it indicated that it had read the sentencing

memorandum. Indeed, it engaged in a colloquy with defense counsel regarding a

portion thereof. Moreover, when the district court asked whether there were other

factors that it should discuss, Black did not renew his overinflated child pornography

guidelines argument. That a district judge does not mention a nonfrivolous argument

does not mean that it was not considered. See Gray, 533 F.3d at 944. Black has thus

not shown plain error. Even if we assume that the district court erred by not

discussing Black’s argument regarding the child pornography guidelines, Black has

not shown a reasonable probability that he would have received a lower sentence but

for the alleged error. 

Black next contends that the district court failed to adequately explain its

reasoning for rejecting his argument. As set forth above, a district court need not

respond to every argument a defendant makes, see Dace, 660 F.3d at 1014, Gray, 533

F.3d at 944. “In explaining the sentence the district court need only 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.” United States

v. Gonzalez, 573 F.3d 600, 607 (8th Cir. 2009) (citation omitted). “[A]ll that is

generally required to satisfy the appellate court is evidence that the district court was

aware of the relevant factors.” Nissen, 666 F.3d at 491 (quoting United States v.

Perkins, 526 F.3d 1107, 1110 (8th Cir. 2008)). The record demonstrates that the

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district court was aware of the relevant factors and that it considered them when

determining Black’s sentence. The district court mentioned the nature and

characteristics of the offense, Black’s lack of a criminal history, his mental health

problems, his need for continued treatment, and the need to avoid unwarranted

sentencing disparities. 

No procedural errors having been demonstrated, we turn to the substantive

reasonableness of the sentence, which we review under a deferential abuse-ofdiscretion standard. United States v. Werlein, 664 F.3d 1143, 1146 (8th Cir. 2011)

(per curiam) (citing Gall, 552 U.S. at 51). “A district court abuses its discretion ‘when

it fails to consider a relevant and significant factor, gives significant weight to an

irrelevant or improper factor, or considers the appropriate factors but commits clear

error of judgment in weighing those factors.’” Id. (quoting United States v. Miner,

544 F.3d 930, 932 (8th Cir. 2008)). Black argues that the sentence imposed by the

district court is substantively unreasonable because the court did not consider that the

child pornography guidelines are overinflated, gave too much weight to the offense,

did not sufficiently explain the sentence, and did not properly apply the sentencing

factors. 

“A presumption of reasonableness will be applied to sentences within the

guideline range, even if the sentence is derived from a guideline that was ‘the product

of congressional direction rather than [an] empirical approach.’” Werlein, 664 F.3d

at 1146 (alteration in original) (quoting United States v. Kiderlen, 569 F.3d 358, 369

(8th Cir. 2009)). Moreover, “[w]here a district court has sentenced a defendant below

the advisory guidelines range, it is nearly inconceivable that the court abused its

discretion in not varying downward still further.” United States v. McKanry, 628 F.3d

1010, 1022 (8th Cir. 2011) (internal quotation and citation omitted). Having read

Black’s sentencing memorandum, the district court considered not only the nature of

the offense but also Black’s characteristics weighing in favor of a more lenient

sentence, including his mental health history and lack of criminal history, and then

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varied downward from Black’s sentencing range. Assuming that it may disregard the

child pornography sentencing guideline on policy grounds, a district court is not

required to do so. See United States v. Barron, 557 F.3d 866, 871 (8th Cir. 2009); see

also United States v. Maulding, 627 F.3d 285 (7th Cir. 2010) (per curiam) (holding

that a policy disagreement with the child pornography sentencing guidelines does not

require a district court to vary downward for a defendant’s sentence to be reasonable). 

In sum, the district court did not abuse its discretion in declining to vary downward

still further. 

Finally, Black contends that the district court abused its discretion by imposing

a special condition of supervised release prohibiting access to the internet without

approval from the probation office. “The district court enjoys broad discretion when

imposing conditions of supervised release, provided that each condition: ‘1) is

reasonably related to the sentencing factors set forth in 18 U.S.C. § 3553(a); 2)

involves no greater deprivation of liberty than is reasonably necessary for the purposes

set forth in § 3553(a); and 3) is consistent with any pertinent policy statements issued

by the Sentencing Commission.’” United States v. Wiedower, 634 F.3d 490, 493 (8th

Cir. 2011) (quoting United States v. Bender, 566 F.3d 748, 751 (8th Cir. 2009)). 

Because Black did not object to the imposition of the restriction at sentencing, we

review his argument under the plain error standard set forth above. 

We conclude that the district court did not plainly err in imposing the internet

restriction. The district court found that Black was not just a passive possessor of

child pornography but rather “actively used a retrieval computer-type device in order

to execute the crime.” Sentencing Tr. 24. The court noted that the PSR, which stated

that Black had employed a Limewire file sharing program, demonstrated that the

limitations placed on Black’s supervised release were appropriate because of the

manner and method by which Black had accessed the child pornography. In United

States v. Durham, 618 F.3d 921 (8th Cir. 2010), we determined that a district court

does not abuse its discretion, much less plainly err, in imposing a restriction on

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internet access when the restriction does not amount to a total ban and the evidence

shows that the defendant shared child pornography through the use of a file sharing

program like Limewire. Id. at 944-45. Because Black may still access the internet

with the permission of the probation office, the ban is not a total one, id. at 944, and

thus the district court did not plainly err in imposing the internet use restriction.

III.

The sentence is affirmed. 

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