In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 03-3366

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ERNEST A. NEWSOM,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. IP-03-26-CR-01 M/F—Larry J. McKinney, Chief Judge.

____________

SUBMITTED SEPTEMBER 20, 2005—DECIDED NOVEMBER 2, 2005

____________

Before BAUER, POSNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge. After a trial, Ernest A. Newsom

was convicted of one count of production of child pornography, 22 counts of receiving child pornography, and one

count of possession of child pornography. His victims

included his own daughter and his ex-girlfriend’s daughter,

who feature prominently in the images Newsom created, as

well as unidentified children in hundreds of other pictures

found on his computer. Our earlier opinion in Newsom’s

case rejected his Fourth Amendment argument seeking to

suppress evidence recovered from his home and computer.

See United States v. Newsom, 402 F.3d 780 (7th Cir. 2005)

(Newsom I).
2 No. 03-3366

The district court sentenced Newsom to 324 months in

prison. Under the applicable statutes, Newsom faced

between 10 and 20 years in prison for his conviction for

producing pornography; up to 15 years in prison for each of

his 22 counts of receiving child pornography; and up to five

years in prison for his possession conviction. We concluded

in Newsom I that the district court properly calculated the

final sentencing range of 292-365 months under the nowadvisory Sentencing Guidelines, although we disagreed

with it about exactly how to group the offenses to reach that

result. Id. at 784-86.

Since Newsom challenges the reasonableness of his

sentence, we briefly recount the manner in which that

range was calculated. Newsom had a criminal history

category of I. His offenses, we found, should be organized

into three groups—one for all the counts of receiving

pornography, one for production of child pornography, and

one for possession of child pornography. Of the three

groups, production produced the highest offense level, 37,

once enhancements were included. That included enhancements for involving a victim under the age of 12, involving

a victim under Newsom’s care and supervision, obstruction

of justice for failing to appear for a plea hearing, and

abusing a vulnerable victim who was asleep. Three more

levels were added pursuant to the multiple count adjustment of U.S.S.G. § 3D1.4, creating a total offense level of

40. This resulted in the Guidelines range of 292 through

365 months, from which the district court picked a sentence

of 324 months.

We ordered a limited remand so that the district court

could inform us whether it considered the sentence to be

appropriate, given that the Guidelines are no longer

mandatory. See United States v. Booker, 125 S. Ct. 738

(2005); United States v. Paladino, 401 F.3d 471 (7th Cir.

2005). As this court held in Paladino, if the district court

indicates that it would impose the same sentence, that
No. 03-3366 3

sentence will be affirmed against a plain-error challenge so

long as it is reasonable. 401 F.3d at 484. Our review is

deferential to the district court’s judgment; “the question is

not . . . what sentence we ourselves might ultimately have

decided to impose on the defendant.” United States

v. Williams, No. 03-4091, *5 (7th Cir. Oct. 6, 2005). Furthermore, if a sentence is within the properly calculated

Guidelines range, it is presumptively reasonable. See

United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.

2005).

In this case, the district court has informed us that

it would impose the same sentence under the advisory

Guidelines. By way of explanation, the district court pointed

to Newsom’s flight from the jurisdiction before trial, to the

harm he inflicted on his victims, and to the protection of the

rights of the children involved. As the district court noted,

“Each receipt of an item of child pornography is as harmful

as the next. Each receipt of child pornography provides

another opportunity to profit from the intrusion into a

child’s privacy and development, operates to create relationships between various pornography manufacturers, and

further extends the market for child pornography.” The

district court emphasized the importance of providing

punishment that reflects the seriousness of the offense and

affords adequate deterrence. The court’s analysis addressed

some but not all of the factors listed in 18 U.S.C. § 3553(a),

including the “nature and circumstances of the offense,” §

3553(a)(1), “the need . . . to reflect the seriousness of the

offense,” § 3553(a)(2)(A), deterrence, § 3553(a)(2)(B), and

protecting the public, § 3553(a)(2)(C).

After receiving the district court’s statement, this court

invited both the government and Newsom to file any

arguments concerning the disposition of this appeal; only

Newsom responded. He challenges his sentence of 324

months as unreasonable on two grounds. First, he contends

that the district court failed to consider his personal history
4 No. 03-3366

and characteristics, as required by 18 U.S.C. § 3553(a)(1);

second, he argues that the sentence is not reasonable

because others who committed more heinous crimes were

sentenced to shorter prison terms, which is inconsistent

with § 3553(a)(6). Before Booker, the § 3553(a) factors could

be considered only in limited circumstances; now the

district courts must always consider these factors to

determine if the advisory Guidelines range is appropriate.

As we noted above, however, our role is not that of the

sentencing court. “The question is not how we ourselves

would have resolved the factors identified as relevant by

section 3553(a).” Williams, No. 03-4091, at *5. Furthermore,

given the presumptive reasonableness of sentences within

the Guidelines range, we have observed that it will be the

rare sentence within the Guidelines range that “stands out

as unreasonable.” Id. For the reasons detailed below, we

reject each of Newsom’s arguments.

We look first at his assertion that the court failed properly to take his individual circumstances into account,

including particularly his depression, alcohol abuse, and

work history, as required by 18 U.S.C. § 3553(a)(1). He

reads this court’s decision in United States v. Dean, 414

F.3d 725 (7th Cir. 2005), as holding that the court must

address the defendant’s personal characteristics if they

are “decisive” to the sentence imposed. That is not quite

what Dean said, however. Its exact language, insofar as it

applies to Newsom’s case, was as follows:

[T]he sentencing judge can discuss the application of

the statutory factors to the defendant not in checklist

fashion but instead in the form of 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.

Id. at 729. The opinion went on to say that explicit

fact findings were required “if, though only if, contested
No. 03-3366 5

facts are material to the judge’s sentencing decision.” Id.

at 730.

In Newsom’s case, we see no indication that there was

a contested issue of fact relating to the personal characteristics Newsom has highlighted. It is unfortunate that the

court did not mention these points in its order, since

Newsom had relied heavily on them on remand, but the

court must have thought this unnecessary because the

government did not take issue with any of them. It is

their significance that was contested. In our view, the

only reasonable way to read the court’s memorandum is

as an indication of which facts the court did find material: Newsom’s flight, his relationship of trust with and

authority over two of his victims, and the seriousness of the

offense. The Guidelines, which take those factors into

account, normally should point the way toward a reasonable

sentence consistent with § 3553(a). See Mykytiuk, 415 F.3d

at 607.

Dean also held that the district court’s obligation to

explain the sentence it chose becomes greater “the farther

the judge’s sentence departs from the guidelines sentence.”

414 F.3d at 729 (emphasis added). “When the judge exercises her discretion to impose a sentence within the Guideline range and states for the record that she is doing so,

little explanation is required.” Id. at 730 (quoting United

States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005)). Thus, to

summarize, the district courts must resolve disputed

material issues of fact that relate to particular § 3553(a)

factors that a defendant brings to the court’s attention; they

must explain the conclusions they draw with respect to

“decisive” characteristics; and, to the extent that they are

departing from the sentence recommended by the Guidelines, they must set forth the justification for doing so. In

this case, the district judge selected a sentence at the center

of the Guidelines range and explained in his order on

remand why he thought this was appropriate. We add for
6 No. 03-3366

the sake of completeness that we too see nothing in

Newsom’s personal history that shakes our confidence in

this conclusion.

Newsom’s other argument is that his sentence was

unreasonable because it violated the command of

§ 3553(a)(6) to take into account “the need to avoid unwarranted sentence disparities among defendants with similar

records who have been found guilty of similar conduct.”

While we find this a closer call, we conclude that the

district court’s weighing of the facts of Newsom’s case

against those of other cases is entitled to deference.

Prior to Booker, disparities resulting from the proper

application of the Guidelines were not a permissible reason

for a departure from a properly calculated sentencing range.

See United States v. Meza, 127 F.3d 545, 549-50 (7th Cir.

1996). Now that the district court is obliged directly to

confront all of the § 3553(a) factors, however, comparison of

sentences has become a permissible part of the overall

sentencing determination. Both before the district court and

before this court, Newsom has attempted to rely on our

earlier expressed concern about marginal deterrence. In

affirming the district court’s application of the Guidelines,

we noted that the length of Newsom’s overall sentence, 324

months or 27 years, was troubling in light of theories of

marginal deterrence, which provide that the harshest

sentences should be reserved for the most heinous behavior.

Newsom I, 402 F.3d at 785-86. What, we asked, of the

defendant who does something even worse than Newsom?

The district court was aware of our concerns about

marginal deterrence, but it found nevertheless that this

long sentence is appropriate given all of the particulars of

Newsom’s case. It recalled that Newsom had abused the

trust of his own daughter and his ex-girlfriend’s daughter,

that he had fled from prosecution, the fact that he was

convicted on 22 counts of receiving child pornography in
No. 03-3366 7

addition to manufacturing it, and the need to deter similar

crimes. In considering this argument, we begin with the

observation that § 3553(a) does not ban all disparities; its

concern is only with unwarranted disparities.

Arguing by analogy from other cases, Newsom urges

that his sentence was far longer than sentences imposed on

other defendants whose crimes were worse than his own. In

United States v. Cunningham, 405 F.3d 497 (7th Cir. 2005),

for example, the defendant seduced a 14-year-old using the

Internet, had sexual intercourse with her, and took pictures. For all this, he was convicted of one count of producing child pornography and, after an upward departure,

received a sentence of 210 months in prison. United States

v. Schmeilski, 408 F.3d 917 (7th Cir. 2005), was even closer

to Newsom’s situation on its facts. There the defendant

used his digital camera to produce pornographic pictures of

his three teen-aged stepdaughters and downloaded more

than a thousand other such images from the Internet. In

that case, the defendant pleaded guilty to production of

child pornography, possession of child pornography, and

criminal forfeiture, but he received a sentence of only 213

months in prison. Finally, in United States v. Snyder, 189

F.3d 640 (7th Cir. 1999), the defendant was convicted of

producing, receiving, and distributing child pornography, as

well as possessing child pornography with intent to sell,

after a co-conspirator brought an 11-year-old to his house

where the defendant engaged in sexual activities with him,

some of which were recorded and distributed on the

Internet. That defendant was sentenced to 168 months.

Newsom argues, not without reason, that his crimes were

not as serious as any of these three, yet his sentence was

111 months longer than even Schmeilski’s (114 months

longer than Cunningham’s, and 156 months longer than

Snyder’s).

While comparisons are appropriate, it is important in

the first instance to recall that the Guidelines were in-
8 No. 03-3366

tended to create national uniformity, and that this goal

remains important post-Booker. It is not enough for a

defendant to argue that a few cases from any particular

circuit seem to cast doubt on his sentence. In addition, one

needs to know more than the crime of conviction and the

total length of the sentence to evaluate disparities; the

specific facts of the crimes and the defendant’s individual

characteristics are also pertinent. The district court

was entitled to conclude that the differences in the facts

of each of the cases Newsom cited justified the more

severe sentence for Newsom. For example, in Cunningham,

the defendant was convicted of a single crime involving a

single victim, not 23 crimes involving two children in his

own home as well as the many others depicted in pictures

found on his computer. In Schmeilski, the defendant

pleaded guilty, thereby giving some reason to think that he

recognized his wrongdoing and thus was worth the risk of

a lower sentence. In Snyder, the defendant was not in a

position of authority or trust relative to the victim; in

addition, his convictions were based upon actions with only

one victim, although what happened to that victim was

particularly egregious. In none of these cases was the

defendant’s sentence enhanced for obstructing justice.

Newsom has only himself to blame for the increase attributable to his flight from the jurisdiction.

Other cases also suggest that Newsom’s sentence is not as

extreme as it may appear at first blush. For example, in

United States v. Ohlinger, 377 F.3d 785 (7th Cir. 2004), the

defendant was sentenced to 360 months in prison after

pleading guilty to one count of transporting in interstate

commerce a visual depiction of a minor engaged in sexually

explicit conduct. The district court based the sentence in

that case on the defendant’s lengthy criminal history

related to sexual crimes involving children as well as the

danger to society from the defendant who was “still extremely interested in sex with children.” When the district
No. 03-3366 9

court in Ohlinger indicated on a Paladino limited remand

that it would still impose the same sentence knowing that

the Guidelines are advisory, this court held that the

sentence was reasonable. See also United States v. Danser,

270 F.3d 451 (7th Cir. 2001) (sentence of 370 months for

child pornography-related charges arising from defendant’s

improper relationship with his daughter).

Newsom also argues that the fact that he at one point

entered into a tentative plea agreement under which the

Guidelines range would have been between 121 and 151

months demonstrates that the 324-month sentence is

unreasonable. But Newsom did not get the benefit of that

plea agreement for a very simple reason: instead of pleading

guilty, he skipped off to Florida and started living under an

assumed name. There is really nothing more to say about

this argument.

We note finally that under both the applicable statutes

and the advisory Guidelines, Newsom could have received an even longer sentence. As we noted earlier, his

Guidelines range was 292 to 365 months; his sentence fell

in the middle of that range. Although it might have been

useful if the court had said a little more about the apparently exceptional severity of Newsom’s sentence, our

examination of this question has satisfied us that it was not

great enough to require a finding of unreasonableness for a

sentence that falls within a properly calculated Guidelines

range. See Mykytiuk, 415 F.3d at 608. We therefore find

that Newsom’s sentence was not the result of plain error.

The district court’s conclusion that this was a reasonable

sentence under all the circumstances is AFFIRMED.
10 No. 03-3366

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—11-2-05