In the

United States Court of Appeals

For the Seventh Circuit

No. 13-1217

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JASON E. STARKO,

Defendant-Appellant.

Appeal from the United States District Court for the 

Southern District of Illinois.

No. 3:11-cr-30230-DRH-1 — David R. Herndon, Chief Judge.

ARGUED MAY 21, 2013 — DECIDED NOVEMBER 25, 2013

Before RIPPLE, WILLIAMS, and TINDER, Circuit Judges.

RIPPLE, Circuit Judge. Jason Starko was indicted for, and

pleaded guilty to, two counts of production of child pornography, in violation of 18 U.S.C. § 2251(a). The court sentenced

Mr. Starko to 360 months’ imprisonment on each count, to run

concurrently. Mr. Starko maintains that, in imposing sentence,

the district court failed to address one of his principal,

nonfrivolous arguments in support of a lower sentence. Forthe
2 No. 13-1217

reasons set forth in the following opinion, we affirm the

judgment of the district court. 

I

BACKGROUND

Mr. Starko was charged with and pleaded guilty to two

counts of producing child pornography. The videos that

formed the basis for the indictment were of a five-year-old girl;

Mr. Starko was a friend of the girl’s mother and was living in

their home. Subsequent interviews with the victim, her sevenyear-old sister and Mr. Starko’s own daughter revealed that, in

addition to filming and photographing the victim and her

sister, Mr. Starko had touched the genitals of all three girls.

Mr. Starko was evaluated by a psychiatrist, Dr. Daniel

Cuneo, to determine his competency to stand trial. Dr. Cuneo’s

report concluded that Mr. Starko was competent, but reflected

“a diagnosis of major depressive episode, recurrent,

polysubstance dependence in a controlled environment, and

schizotypal personality disorder.” Appellant’s Br. 9.

Mr. Starko eventually pleaded guilty to the charges, and a

presentence report (“PSR”) was prepared. The PSR calculated

Mr. Starko’s guideline range as 360 months. Before the district

court, Mr. Starko raised two objections to his sentence calculation, neither of which he renews on appeal. At sentencing, his

counsel also argued for a below-guidelines sentence “principally because my client’s [sic] mentally ill.” R.53 at 69.

Mr. Starko submitted Dr. Cuneo’s report for the court’s

consideration, and Mr. Starko’s counsel highlighted
No. 13-1217 3

Dr. Cuneo’s findings, as well as the report of mental and

emotional health set forth in the PSR. Mr. Starko’s counsel also

argued that Mr. Starko’s failure to admit to his crimes at an

earlier stage in the proceedings was due to the lack of medication for his mental illness. Near the end of his argument,

Mr. Starko’s counsel added the following observation:

Now, [the Government] tells the Court, give him

40 years because it protects the public. But there are

other mechanism[s] out there to protect the public,

Your Honor. You can sentence my client to a sentence of 20 years, and at the end of that term he will,

because of the nature of this case, he will be evaluated to see whether he’s sexually dangerous or not,

and if he’s sexually dangerous at the end of that

term, he will be the subject of a civil commitment,

and he isn’t going to be turned loose on the public in

this country under the law as it stands today or in

the future unless it’s safe. At the end of the term that

you give him he’s going to be thoroughly evaluated.

He’s going to be evaluated regardless, but at the end

of the term a decision will be made whether he can

be released in the community, properly supervised

and properly medicated or whether or not he’ll be

the subject of an indefinite civil commitment.

Id. at 72–73. Mr. Starko’s counsel then concluded: “So I would

suggest to the Court, you can sentence him to 20 years, and

that punishes the man for the deed, but it also takes into

account the fact that at least part of this is explained by his

history, characteristics, and mental illness.” Id. at 73. Mr. Starko

did not submit a sentencing memorandum concerning the
4 No. 13-1217

merits orlikelihood of civil commitment, and this was the only

mention of civil commitment during the sentencing hearing.

When announcing the sentence, the district court expressed

doubt that either Mr. Starko’s conduct or his excuses for his

conduct were attributable to his medication, his lack of

medication or his mental illness. See id. at 82. It stated:

This is quite serious, and it’s the deliberate

nature—I have a hard time accepting the defendant’s defense of himself in terms of blaming it both

on the type of medication he was taking, and then

the medication he didn’t take, and the wondering

about the phantom hand syndrome. When you see [1]

the picture of him touching, and the way in which

he touched the vagina of the victim, not only spreading the legs, as [the Government] talked about, but

spreading the—actually spreading the vagina of the

child was just terrible. He clearly had an agenda

with respect to these victims—the victim in the

pictures, and also the other child that was considered relevant conduct in this case.

Id. The court also voiced concerns with respect to the seriousness of Mr. Starko’s actions: 

In his allocution, Mr. Starko informed the court that he “recently [had 1

been] reading a book how sometimes we can’t make decisions on our own,

the things like Tourette’s and the phantom hand syndrome and things.”

R.53 at 79. Mr. Starko appeared to be attributing his criminal actions, at least

in part, to his inability to “control [his] hands” as dictated by “his subconscious.” Id.
No. 13-1217 5

When we look at the history and characteristics,

though he didn’t have [a] prior conviction, the Court

certainly believed he had prior conduct of a similar

nature with [another child], and there was a strong

implication about another, so there’s certainly prior

conduct that leads the Court to believe that this

wasn’t the only time for this kind of conduct with

thedefendant, though we don’t know about production of child pornography; we only know about the

conduct with respect to child molestation. So we

know that the defendant is quite dangerous.

Id. at 82–83. The court then evaluated the evidence it had been

provided and the arguments that had been made in light of the

factors set forth in 18 U.S.C. § 3553:

The problem that the Court is presented with is,

we have someone that has a mental illness of undefined parameters, that has a history of sexual crimes,

with a significant sexual crime on this occasion, that

has gone undiagnosed and untreated for, it would

appear, a number of years. And what is the effect

upon the Court in terms of how the Court is to treat

that with respect to the sentence imposed reflecting

the seriousness of the offense, providing just punishment, affording adequate deterrence to criminal

conduct, and protecting the public from further

crimes of the defendant?

Id. at 83–84. After considering these factors, the court announced its sentence:
6 No. 13-1217

The Court finds, quite frankly, that in a case such

as this, that in order to provide adequate protection

to the public for a gentleman that is 36 years old,

who has the history and characteristics that this

defendant has, who has the mental issues that this

defendant has, who has committed the serious crime

that he has, that the appropriate punishment for this

particular crime is a punishment that is consistent

with the advice issued by the Sentencing Commission, and so will impose a sentence of 360 months. 

Id. at 84–85.

II

DISCUSSION

On appeal, Mr. Starko’s sole argument is that the district

court committed procedural error because it failed to address

his argument that a twenty-year sentence was sufficient to

serve the goals of sentencing because of the possibility of civil

commitment at the end of his term. Appellant’s Br. 2. He urges

that a remand is necessary so that the district court may

address explicitly this issue. 

The Government counters that the district court addressed

Mr. Starko’s alleged mental illness, which was his principal

argument for lenity. It also maintains that there is only a

possibility that Mr. Starko will be civilly committed after he

serves his term of imprisonment. Consequently, any argument

that civil commitment guarantees the public’s safety is purely
No. 13-1217 7

speculative and lacks the factual foundation necessary to

warrant comment by the district court.

We have had several occasions to explain the responsibility

of a district court in handing down a criminal sentence. We

have stated that,

[t]o avoid procedural error, sentencing judges

must correctly calculate the guidelines range, evaluate the factors in 18 U.S.C. § 3553(a), and rely on

properly supported facts. Judges must also adequately explain the chosen sentence to allow for

meaningful appellate review and to promote the

perception of fair sentencing. In selecting an appropriate sentence, district courts are expected to

address principal, nonfrivolous arguments in mitigation, but should disregard contentions lacking

factual foundation.

United States v. Chapman, 694 F.3d 908, 913–14 (7th Cir. 2012)

(citations omitted) (internal quotation marks omitted). Courts

do not have to engage in “a discourse of every single § 3553(a)

factor”; however, “it is also the case that a ‘rote statement that

the judge considered all relevant factors will not always

suffice.’” United States v. Harris, 567 F.3d 846, 854 (7th Cir. 2009)

(quoting United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.

2005)). 

In particular, when a court has “passed over in

silence the principal argument made by the defendant even though the argument is not so weak as

not to merit discussion,” we do not have the assurance we need to satisfy ourselves that the defen-
8 No. 13-1217

dant’s individual circumstances have been thoroughly considered.

Id. (quoting Cunningham, 429 F.3d at 679).

We perceive no procedural error in the district court’s

approach. The district court thoroughly addressed the issue of

Mr. Starko’s mental illness and any possible mitigating role it

should have played in his sentence. Indeed, after defense

counsel had addressed the court on the matter of sentencing

and Mr. Starko had begun his allocution, the court interrupted

the defendant and questioned him directly about his mental

health history. The dialogue between the court and the

defendant revealed a person who had realized that he had

some sort of mental disorder, had engaged in various forms of

self-diagnosis and self-help, but had received no diagnosis or

professional care until Dr. Cuneo’s examination in connection

with this proceeding. The transcript reveals a district court

that, far from ignoring the contention of defense counsel,

actively pursued the matter of Mr. Starko’s mental health. The

court acknowledged that Mr. Starko “clearly ... has a mental

issue.” R.53 at 83. Nevertheless, the court was unable to accept

that there was a connection betweenMr. Starko’s mental illness

and the crimes to which he pleaded: “I have a hard time

accepting the defendant’s defense of himself in terms of

blaming it both on the type of medication he was taking, and

then the medication he didn’t take[] ... .” Id. at 82. Moreover,

the court noted that there was no question concerning

Mr. Starko’s competency, his ability to aid in his own defense

or his capability to understand the wrongfulness of his actions.

See id. at 83. Consequently, this is not a situation where the
No. 13-1217 9

district court “passed over in silence” the defendant’s principal

argument for a reduced sentence. Harris, 567 F.3d at 854

(internal quotation marks omitted). It is clear that the court

understood Mr. Starko’s arguments and his condition, but did

not believe that his condition excused or mitigated the “quite

serious” and “deliberate” crimes that Mr. Starko committed.

R.53 at 82.

We have noted that “[t]he amount of explanation required

from the district court varies with the circumstances.” United

States v. Pietkiewicz, 712 F.3d 1057, 1061 (7th Cir. 2013). Here,

although the district court did not explicitly mention civil

commitment in its statement of reasons, it did set forth a

sufficient explanation as to why a period of lengthy incarceration was necessary to protect the public. 

An individual may be civilly committed only if a court

finds, by clear and convincing evidence, that he is “sexually

dangerous.” 18 U.S.C. § 4248(d). By definition, a person is

“sexually dangerous” only if he “is sexually dangerous to

others,” that is, he “suffers from a serious mental illness,

abnormality, or disorder as a result of which he would have

serious difficulty in refraining from sexually violent conduct or

child molestation if released.” 18 U.S.C. § 4247(a)(5)–(6)

(emphasis added). In other words, to be civilly committed,

there must be a causal connection between an individual’s

mental illness and his behavior. The evidence at trial did not

convince the district court that there was an established causal

connection between Mr. Starko’s offense conduct and his

mental condition. Our independent examination of the record

convinces us that there was more than an adequate basis for
10 No. 13-1217

the court’s skepticism and for its reluctance to jeopardize the

public’s protection from Mr. Starko’s predatory conduct on

such thin psychiatric evidence. The district court was on solid

ground in not accepting Mr. Starko’s argument that his illness

was related to his predatory actions. Having determined that

one of the requirements for civil commitment could not be

satisfied, the district court could not rely on the civil commitment process to protect adequately the public from any future

predatory behavior on the part of Mr. Starko. 

Our case law requires that a district court “must ... ‘adequately explain the chosen sentence to allow for meaningful

appellate review and to promote the perception of fair sentencing.’” Chapman, 694 F.3d at 913 (quoting Gall v. United States,

552 U.S. 38, 50 (2007)). The district court’s explanation of Mr.

Starko’s sentence satisfies these standards.

Conclusion

For the reasons set forth above, we affirm the judgment of

the district court.

AFFIRMED