NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 09-3273

 

UNITED STATES OF AMERICA

v.

LOWELL E. MCMICKENS,

 Appellant

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

(D.C. Crim. No. 08-cr-00366-001)

District Judge: Honorable Christopher C. Conner

 

Submitted Under Third Circuit LAR 34.1(a)

March 8, 2010

 

Before: McKEE, BARRY and GREENBERG, Circuit Judges

(Opinion Filed: April 12, 2010)

 

OPINION

 

BARRY, Circuit Judge

Lowell E. McMickens appeals the sentence imposed by the District Court after

McMickens pled guilty to the receipt of child pornography. McMickens claims that his
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sentence should be vacated because the District Court did not adequately respond to his

argument that the applicable section of the U.S. Sentencing Guidelines (“the Guidelines”

or “U.S.S.G.”) should be accorded little deference. We will affirm. 

FACTS

On February 20, 2009, McMickens pled guilty to a one-count information charging

him with the receipt of more than 600 images of child pornography, in violation of 18

U.S.C. § 2252A(a)(2)(A) & (B). The images were found on his personal computers and

storage devices after law enforcement officials executed a search warrant of

McMickens’s house on September 19, 2008. The search also uncovered images of a

young girl in her underwear that were stored on a digital camera. The presentence report

(“PSR”) calculated a total offense level of 30 and a criminal history category of I. The

Guidelines range was 97 to 121 months. 

In his sentencing memorandum, McMickens argued, among other things, that

U.S.S.G. § 2G2.2 represents congressional mandates and “does not exemplify the

Sentencing Commission’s exercise of its characteristic institutional role.” (App. at 46.) 

At the sentencing hearing held on July 21, 2009, McMickens’s attorney reprised this and

other of his arguments. (See, e.g., id. at 67-68 (“[T]he guideline is one that should be

accorded less deference because it has developed in a way that was not consistent with

the way in which the sentencing guideline [sic] was supposed to promulgate these

guidelines based on empirical analysis, studies of past cases, but merely as a result of
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congressionally directed amendments . . . .”). The District Court stated that it “will not

presume that the guideline range is reasonable . . . [but rather] will make an

individualized assessment based on the facts presented.” (Id. at 64.)

The District Court imposed a sentence of 109 months’ imprisonment. It then

discussed the 18 U.S.C. § 3353(a) factors as they applied to McMickens’s case. It

recounted the events that led to McMickens’s arrest, including the discovery of over

100,000 images and 4400 movie files of child pornography on his four computers and two

external hard drives, as well as images on his digital camera of a young girl in her

underwear, posed inappropriately. With respect to the latter, the Court noted that

McMickens “was standing at the precipice of molestful conduct.” (Id. at 79.) The Court

considered McMickens’s “positive upbringing,” as well as his long struggle with child

pornography and a criminal history that suggested a “potential to re-offend.” (Id. at 77-

78.) The Court concluded that the proliferation of child pornography is an “evil act . . .

demand[ing] a lengthy term of incarceration.” (Id. at 79.) 

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review

the substance of McMickens’s sentence for abuse of discretion. United States v.

Thielemann, 575 F.3d 265, 270 (3d Cir. 2009); United States v. Wise, 515 F.3d 207, 218

(3d Cir. 2008). Our level of deference “will depend on the type of procedural error

asserted on appeal.” Wise, 515 F.3d at 217. 
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DISCUSSION

The sole argument on appeal is that the District Court did not recognize and

meaningfully respond to McMickens’s assertion that U.S.S.G. § 2G2.2 is inherently

flawed and recommends a sentence that is greater than necessary to achieve the goals of

sentencing in his case. He maintains that its failure to do so amounted to a significant

procedural error necessitating that we vacate his sentence and remand for re-sentencing. 

 Sentencing courts must engage in a three-step analysis to determine the

appropriate sentence to impose on a defendant. United States v. Tomko, 562 F.3d 558,

577 n.16 (3d Cir. 2009) (en banc) (citing United States v. Gunter, 462 F.3d 237, 247 (3d

Cir. 2006)). The parties agree that the District Court accurately calculated the Guideline

range and that the second step in the analysis – i.e., departure motions – is not implicated

here. The focus is on the final step, where a court is “required to ‘exercise [its] discretion

by considering the relevant § 3553(a) factors’ in setting the sentence [it] impose[s]

regardless of whether it varies from the sentence calculated under the Guidelines.” Id. It

is here that McMickens’s alleges the Court failed to consider his arguments concerning

the flaws in U.S.S.G. § 2G2.2.

Sentencing courts must give “meaningful consideration to all of the sentencing

factors in 18 U.S.C. § 3553(a),” United States v. Olhovsky, 562 F.3d 530, 546 (3d Cir.

2009) (quotations and citation omitted), and “the record must show a true, considered

exercise of discretion on the part of a district court, including a recognition of, and
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response to, the parties’ non-frivolous arguments,” United States v. Jackson, 467 F.3d

834, 841 (3d Cir. 2006). When a defendant challenges one of the applicable Guidelines

on policy grounds, the district court is not required “to reject a particular Guidelines range

where that court does not, in fact, have disagreement with the Guideline at issue.” United

States v. Lopez-Reyes, 589 F.3d 667, 671 (3d Cir. 2009). Of course, the district court

must set out its rationale for imposing a particular sentence to facilitate appellate review. 

“Merely reciting the § 3553(a) factors, saying that counsel’s arguments have been

considered, and then declaring a sentence, are insufficient to withstand our

reasonableness review.” Jackson, 467 F.3d at 842; see United States v. Sevilla, 541 F.3d

226, 232 (3d Cir. 2008).

The District Court’s treatment of McMickens’s sentence was hardly a rote

statement acknowledging his arguments and reciting the § 3353(a) factors. Rather, it

demonstrated a thoughtful application of the § 3353(a) factors to McMickens’s case and

was a product of the Court’s view of the seriousness of the conduct involved. The Court

considered the nature and circumstances of the offense, the quantity of the illegal material

discovered, McMickens’s upbringing, his admitted interest in child pornography, his

criminal history, and his possession of a digital camera with lewd images stored on it. 

Although the District Court did not explicitly reference McMickens’s policy

challenge, its comments at sentencing struck at the heart of McMickens’s contentions that

§ 2G2.2 results from congressional mandates and imposes too high a penalty in his “run
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of the mill downloading case.” (App. at 47.) The Court explained:

There is perhaps no greater evil act or destructive images replicated on the

Internet today than the proliferation of child pornography. Provision of a

just punishment and deterrence demand a lengthy term of incarceration, and

I note that Mr. McMickens could also benefit from correctional treatment . .

. [The evidence] indicates that Mr. McMickens had access to minors and

that he interacted with them in a devious manner. He was clearly one step

from taking even more destructive action. A punishment in the mid range

of the guideline range is necessary to protect the public . . . but not greater

than necessary, to achieve sentencing objectives.

(Id. at 79.) These statements reveal the Court’s rejection of McMickens’s policy concern

that “people are getting years and years in prison just for clicking on a mouse.” (Id. at

66.) Both in general and as applied in McMickens’s case, the Court made clear that it

did not share his view of § 2G2.2; on the contrary, it found the midpoint of the

Guidelines range appropriate in light of the particular facts of McMickens’s case. The

Court did not abuse its discretion in imposing this sentence. See Thielemann, 575 F.3d

at 270.

CONCLUSION

We will affirm the judgment of sentence.