### In the



# United States Court of Appeals For the Seventh Circuit

No. 13-1217
U NI T E D S TAT E SOF A M E RI C A , Plaintiff-Appellee,

v.
J A S ON E. S TARKO

, Defen dant-Appellant.

Appe al f ro m the Uni ted S tates Distri ct Co urt fo r the

So uthern Distri ct o f Il l i noi s. No. 3: 11 -cr- 30 23 0- DRH-1 — David R. He rndon, Chief Judg e.
A RGU E D M A

Y 21, 2013

— D E C I D E D N OV E MB E R 25, 2013
Before R I P PL E, W I L L I AM S , and T I ND E R

, Circ uit Judges. R I P PL E, Circu i t Ju dge. Jason St ark o w as indi cted for , and pleaded gui lty to, tw o counts of production of chi ld porno gr ap hy , in violati on of 18 U.S.C. § 2251(a). The court sentence d Mr

. St ark o to 360 months’ i mpri sonment on each count, to run concu rr ently

. Mr

. St ark o maintains that, in i mposing sentence, the di stric t court fai led to address one of hi s prin ci pal, nonfri v olous arg uments in supp or t of a low er sentence. For the2 No. 13-1217

reasons set fort h in the foll o win g opini on, w e affi rm the judgment o f the di stric t court

.

I

BACKGRO UND Mr

. St ark o w as charged wi th and pleaded gui lty to tw o counts of producing chi ld porno gr aphy

. Th e videos that formed the basi s for the indi ctment were of a fi v e-y ear -old girl; Mr

. St ark o w as a fr iend o f the girl’s mother and w as living in their home. Subsequent interv i ews wi th the vic tim, her sev eny ear -old si ster and Mr

. St ark o’s own daughter rev ealed that, in addi tion to fi l min g and photo gr aphing the vic tim and her si ster , Mr . St ark o had to uch ed the genitals of all three girls. Mr

. St ark o w as ev aluated by a psychi atr i st, Dr

. Dani el Cuneo, to deter mine hi s competency to stand tr i al. Dr

. Cuneo’s repo rt conclu ded that Mr

. St ark o w as competent, but reflected “a d i agnosi s of major depressiv e epi sode, recurr ent, polysubstanc e dependence in a contro lled environment, and schi zoty pal personali ty disorder .” Appellant’s Br . 9. Mr

. St ark o ev entually p leaded gui lty to the charges, and a presentence repo rt (“PSR”) w as prepar ed. The PSR calculated Mr

. St ark o’s gui deline range as 360 months. Before the di stric t court, Mr

. St ark o rais ed tw o objections to hi s sentence calculation, nei ther of whi ch he renews on appeal. At sentencing, hi s couns el also arg ued for a below-gui delines sentenc e “prin ci

pally becau se my cli ent’s [si c] mentally i ll.” R.53 at 69. Mr

. S tar ko sub mi tte d Dr

. Cuneo’s repo rt for the court’s
co ns ide r a t io n, a nd M r
. S t a r k o ’ s co un se l hi g hl ig ht e dNo. 13-1217 3
Dr

. Cuneo’s findings, as w ell a s the repo rt of mental and emotional health set fort h in the PSR. Mr

. St ark o’s couns el also arg ued that Mr

. St ark o’s fai lure to admi t to hi s crime s at an earlier stage in the proceedings w as due to the lack of medi cation for hi s mental i llness

. Near the end of hi s arg umen t, Mr . St ark o’s counsel add ed the following observ ation: Now , [the Gov ernment] tells the Cour t, giv e hi m 40 y ears becau se i t prot ects the publi c. But there are other mechani sm[ s] o ut t he re to prot ect the publi c, Y our Ho nor
. Y

ou can sentence my cli ent to a sentence of 20 y ears, and at the end of that ter m he wi ll, be ca us e of the nature of thi s case, he wi ll be ev aluated to see whether h e’s sexually dangero us or not, and i f he’s se x ua l ly dangero us at the end of that ter m, he wi ll be the subject of a ci vil commi tment, and he i sn’t going to be turned loose on the publi c in thi s country under the law as i t stands today or in the future unles s i t’s safe. At the end of the ter m that y ou giv e hi m he’s going to be thor oughly ev aluated. He’s going to be ev aluated reg ardless, but at the end of the te rm a deci si on wi ll be made whether he can be r ele a sed in the commu ni ty , proper ly supervis ed and proper ly medi cated or whether or not he ’ll be the subject of an indefini te ci vil c ommi tment. Id. at 72–73. Mr

. St ark o’s couns el then conclu ded: “So I w ould suggest to the Court, y o u ca n se nt ence hi m to 20 y ears, and that puni shes the man for the deed, but i t also take s into account the fact that at least part of thi s i s explain ed by hi s hi stor y , characteris tic s, and mental i llness .” Id. at 73. Mr

. St ark o di d not sub mit a sentencing memorandum concerning the4 No. 13-1217
merits or li kelih ood of ci vil commi tment, and thi s w as the only menti on of ci vil c ommi tment during the sentencing hearing. When announc ing the sentence, the di stric t co u rt e xp ress ed doubt that ei ther Mr

. St ark o’s conduc t or hi s excuses fo r hi s conduc t were attr ibutable to hi s medi cati on, his lack of medi cati on or hi s mental i llness

. See id. at 82. Itstated: Thi s i s qui te seri ous, and it ’ s the deliberate natu r e
— I hav e a hard tim e accepting the defendant’s defense of hi mself in ter ms of blaming i t both
on the type of medi cati on he w as taking, and then the medi cati on he di dn’t take , and the w ondering about the phantom hand syndrome. When y ou see [1 ] the pi cture of hi m touching, a nd the w ay in whi ch he touched the v agin a of the vic tim, not only spreading the legs, as [the Gov ernment] talked about, but spreading the—actually spreading the v agin a of the chi ld w as just ter rib le. He clear ly had an agenda wi th respect to these vic tim s—the vict im in the pi ctures, and also the other chi l d that w as consi dered r elev ant conduct in thi s cas e. Id. The court als o v oic ed concerns w i th respect to the serious

ness of Mr . St ark o’s acti ons:

In his all ocuti on, Mr. Starko i nfor med the cour t tha t he “re centl y [had 1 b een] readi ng a b oo k how someti mes we can’t mak e deci sio ns on our own, the things l i ke Tour ette’s and the phant o m ha nd syndrome and things.” R.53 at 79

. Mr. Starko appeared to b e attributing his cri minal actio ns, at l east i n part, to his i nab i l i ty to “co ntrol [his] hands” a s di ctated b y “hi s sub conscio us.” Id

.No. 13-1217 5 When w e look at the hi stor y and characteris tic s, though he di dn’t hav e [a] prior convic tion, the Court certainly beli ev ed he had pri or conduc t of a s i mi lar nature wi th [another chi ld], and there w as a stro ng i mpli cati on about another , so there ’s certainly prior conduc t that leads the C ourt to beli ev e that thi s w asn’t the only tim e for thi s kin d of conduc t wi th the d efendant, though w e don’t know about p ro d u c tion of chi ld porno gr aphy; w e only know about the
co nduct wi th respect to chi ld molestation. So w e know that t he defendant i s qui te danger ous. Id. at 82–83. The court then ev aluated the evidenc e i t had been prov i ded and the arg uments that had been made in li ght of the factors set for th in 18 U.S.C. § 3553: The problem that the Cour t is presented wi th i s, w e hav e someone that has a mental i llness of undefined parameter s, that has a hi stor y of sexual cri mes, wi th a si gni fi cant sexual cri me on thi s occasi on, that has gone undi agnosed and untreat ed for , i t w ould appear , a numb er of y ears. And what i s the effect upon the Court in ter ms of how the Court i s to tr eat that wi th respect to the sentence i mposed reflectin g the seri ousness of the offense, prov i d in g ju s t p uni shment, affording adequate deter rence to criminal conduc t, and prot ecting the publi c fr om further cri mes of the defendan t? Id. at 83–84. After consi dering these factors , the court announced i ts sentence:6 No. 13-1217
The Court finds, qui te frankly , that in a case s uch
as thi s, that in or der to prov i de adequate prot ecti on to the publi c for a gentleman tha t i s 36 y ears old, who has the hi stor y and characteris tic s that thi s defendant has , who has the mental i ssu es that thi s d e fendant has, who has commi tte d the seri ous c rim e that he has, that the appropr i ate puni shm ent for thi s particu lar cri me i s a puni shm ent that i s co ns i stent wi th the adv ice i ssu ed by the Sente ncing Commi ssi on, and so wi ll i mpose a sentenc e of 360 months. Id. at 84–85.

II DISCUSSION O n appeal, Mr

. St ark o’s sole arg ument i s that the di strict court commi tte d procedural erro r bec ause i t f ai led to address his a r g ument that a tw enty-y ear sentence w as suffi ci ent to
serv e the goals of sentencing becau se of the possi bi li ty of civil commi tment at the end of hi s ter m. Appellant’s Br

. 2. He urges that a remand i s necess ary so that t he d istric t court may address expli ci tly t hi s i ssu e. The Gov ernment counters that the di stric t court addressed Mr

. St ark o’s alleged me nt al i llness, whi ch w as hi s prin ci pal arg ument for lenit y

. I t also maintains that there i s only a possibility that Mr

. St ark o wi l l be civ i lly commi tte d after he
serv es hi s ter m of i mpri sonment. Consequently , any arg ument that ci vil commi tment guarante es the publi c’s safety i s purelyNo. 13-1217 7
specu lativ e and lacks the fact ua l foundati on necess ary to
w arr ant comment by the di stric t court

. W e hav e had sev eral occasi ons to explain the responsibi li ty of a di stric t court in handing down a cr iminal sentence. W e hav e stated t hat, [t]o av oid procedural err or , sentencing judges
mus t corr ectly calculate the gui delines range, ev aluate the factors in 18 U.S.C. § 3553(a), a nd rely on proper ly su pport ed facts. Judges mus t also adequately explain the chosen sentence to allow for meaningfu l appellate rev i ew and to promo te t he perception of fai r sentencing. In selecting an appropriate sentence, di stric t courts are expected to address prin ci pal, nonfri v olous arg uments in mi tigation, but sh o uld di sregar d contentions lacking factual foundati on. United States v
. Chapman , 694 F .3d 908, 913–14 (7th Ci r
. 2 0 1 2 ) (ci tations omi tte d) (internal quotat i on marks omi tte d). Court s do not hav e to engage in “a di scourse of ev ery single § 3553(a) factor”; how ev er

, “i t i s also the case that a ‘ro te statement that the judge consi dered all relev ant factors wi ll not alw ays suffi ce.’” United States v
. Harris , 567 F .3d 846, 854 (7th Ci r
. 2009) (quoting United States v
. Cun nin gham , 429 F .3d 673, 679 (7th Ci r
. 2005)). In particu lar

, when a court has “ p assed ov er in si lence the prin ci pal arg ume nt made by the defend ant ev en though the arg ument i s not so w eak as not to merit dis cus si on,” w e do not ha v e the assu r ance we need to sati sfy ourselv es that t he defen-8 No. 13-1217
dant’s individu al ci rcums tances hav e been thor

oughly consi dered. Id. (quoting Cun nin gham , 429 F .3d at 679). W e per ce i v e no procedural err or in the di stric t court’s approach. The di stric t court thor oughly addressed the i ssu e of Mr . St ark o’s mental i llnessand any possi ble mi tigating ro le i t should hav e play ed in hi s se nt ence. Indeed, after defense
couns el had addressed the court on the ma t ter of sentencing and Mr

. St ark o had begun hi s allocuti on, the court interr upted the defendant and quest io ne d hi m di rectly about hi s mental he a lth hi stor y

. The di alogue between the court and t he defendant rev ealed a person who had r e a l iz e d that he had
some sort of mental di sorder , had engaged in v arious forms of self- di agnosi s and self-h elp, but had receiv ed no di agnosi s or professi onal care unti l Dr

. Cuneo’s examinati on in connecti on wi th thi s proceedin g
. The tr ansc ript rev eals a di stric t court that, far from i gnor ing the contention o f defense couns el, acti v ely pursued the matter of Mr

. St ark o’s mental health. The court acknowledged that Mr

. St ark o “clearly

... has a mental i ssu e.” R.53 at 83. Nev ert heless, the court w as unabl e to accept that there w as a connecti on betw e e n Mr

. St ark o’s mental i llness and the cri mes to whi ch he plea d e d : “ I hav e a hard tim e accepting t he defendant’s defense of hi mself in ter ms of blaming i t both on the type of medi ca t io n he w as t akin g, and then the medi cati on he di dn’t take [] ...

. ” Id

. a t 82. Mor eov er , the court noted that there w as no que sti on concerning Mr

. St ark o’s competency , hi s abil i ty to ai d in his own defens e or hi s capabi li ty to understand the wrongfulness of hi s acti ons. See id. at 83. Consequently , thi s i s not a si tuation where theNo. 13-1217 9
di stric t court “pass ed ov er in si lence” the defendant’s prin ci pal arg ument for a reduced sentence. Harris , 5 6 7 F .3d at 854 (intern a l quo tation marks omi tte d). It i s clear that the court understood Mr

. St ark o’s arg uments and hi s condi tion, but di d not beli ev e that hiscondi tion ex cus ed or mi tigated the “qui te seri ous” and “deli

bera te” cri mes that Mr

. St ark o commi tte d. R.53 at 82. W e hav e noted that “[t]he amount of explanation required fr o m the di stric t court v aries wi th the ci rcums tances.” Unite d States v
. Pietkiewic z, 712 F .3d 1057, 1061 (7th Ci r
. 2013). Here, although the di stric t court di d no t explic i tly menti on civil commi tment in i ts statement of reasons, i t di d set fort h a suffi ci ent explanation as to why a period of lengthy incarceration w as nec essary to prot ect the publi c. An indi vidu al may be ci villy commi tte d o nl y if a court finds, by clear and co nvin cing evidenc e, that he i s “sexually dangero us.” 18 U .S.C. § 4248(d). By defini tion, a person i s “sexually dangero us” only i f he “i s sexually dangero us to other s,” that i s, he “ su ff ers from a seri ous mental i llness, abnorm a l it y

, o r di sorder as a result of which he w ould hav e seri ous di ffi culty in refraining from sexually violent c on d u ct or chi ld molestation i f released.” 18 U.S.C. § 4247(a)( 5)–(6) (emphas i s added). In other w or ds, to be civi lly commi tte d, there mus t be a caus al connecti on between a n indi vidu al’s mental i llness and hi s behavi or
. The ev ide nce at tr i al di d not convin ce the di stric t court that there w as an establi shed caus al connecti on between Mr

. St ark o’s offense conduct a nd hi s mental condi tion. Our independent examinati on of the recor d convin ces us that there w as more than an a dequate basi s for10 No. 13-1217
the co urt’s skeptic i sm and for i ts reluctance to jeo pardize the pub l i c’s prot ecti on from Mr

. St ark o’s predato ry conduc t on such thin psychi atr i c evidenc e. The di stric t court w as on soli d gr ound in not accepting Mr

. St ark o’s arg ument that hi s i llness
w as r elated to hi s pr edator y actions . Havin g deter mined t hat
one of the requiremen t s fo r ci vil commi tment could not be sati sfi ed, the di stric t court could notrely on the ci vil c ommi tment process to prot ect adequately the publi c from any future predato ry behavi or on the par t of M r . St ark o. Our case law require s t hat a di stric t court “mus t

... ‘adequately explain the chosen sentence to a llow for meaningful appellate rev i ew and to promo te the perception of fai r sentencing.’” Chapman , 694 F .3d at 913 (quoting Gall v
. United States , 552 U.S. 38, 50 (2007))

. The di stric t co ur t ’ s e x planati on of Mr

. St ark o’s sentence sati sfi es these standards.

Conclus ion For the reasons set fort h abov e, w e affi rm the judgment of the di stric t court

. AFF IRM ED