United States of America v. Scott B. Griffith

Scott B. Griffith pled guilty to a

three-count indictment that charged him with receiving,

distributing, and possessing child pornography. The district

court sentenced him to 240 months’ imprisonment on each

count, to run concurrently, as well as a fifteen-year period of

supervised release. On appeal, he asserts that the district court

2 No. 18-1310

committed procedural error in calculating the guidelines

range, and that his resulting sentence is substantively unreasonable.

We affirm.

I.

Griffith was charged with: (1) receiving four digital images

of child pornography, in violation of 18 U.S.C.

§§ 2252A(a)(2)(A) and 2252A(b)(1); (2) distributing three digital

images of child pornography (different than those received), in

violation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(b)(1); and

(3) possessing visual depictions of child pornography in

addition to those described in the receipt and distribution

counts, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and

2252A(b)(2). In total, Griffith’s crimes included 477 photographs

and eleven videos of unspecified length. All counts

were alleged to have occurred during a three-month period

near the end of 2015, and all involved the use of Twitter

accounts. Each time Twitter detected child pornography on

Griffith’s account, the company closed the account and

reported the inappropriate activity. Griffith created more than

twenty-five Twitter accounts during that three-month period

in an attempt to thwart the company’s efforts, directing his

followers from one account to the next.

Prior to committing these crimes, Griffith, who was fiftytwo

years old at the time of his arrest, had amassed enough of

a criminal history to land him in Category V, only one level

below the top of the scale. At the age of twenty, he had

sexually abused a child under the age of thirteen, a conviction

that was too old to be counted for criminal history purposes.

The vast majority of his remaining criminal history was

No. 18-1310 3

composed of driving offenses and thefts, some minor and some

more serious. Additionally, two women had sought and

received orders of protection against Griffith after he threatened

them. His criminal record prior to this offense spanned

nearly thirty years and a dozen of the previous offenses were

either too old or too minor to be included in the calculation of

his criminal history.

The Presentence Investigation Report (“PSR”)1 noted that

the base offense level for the three grouped counts was 22,

citing U.S.S.G. § 2G2.2. An analysis of specific offense characteristics

added 18 levels for a total of 40. In particular, the PSR

added two levels under section 2G2.2(b)(2) because the

material involved a prepubescent minor. Griffith solicited child

pornography on his Twitter pages in exchange for access to his

own collection, leading to a five-level increase under section

2G2.2(b)(3)(b), for distributing the pictures in exchange for

non-pecuniary, valuable consideration, a transaction sometimes

called a “peer-to-peer exchange.” Four levels were added

under section 2G2.2(b)(4)(A) and (B) for material that depicted

violence and sexual abuse or exploitation of a toddler. The use

of a computer contributed two levels under section 2G2.2(b)(6).

Finally, each of the eleven videos was treated as equivalent to

seventy-five images which, when added to the 477 photographs,

pushed the total images over 600 and added five levels

1 There are two versions of the PSR in the record, an original and a revised

version. The revised version includes an addendum that details the

defendant’s objections to the first PSR and the government’s response, as

well as some other revisions and recommendations. For the purpose of

calculating the offense level and criminal history category, the PSRs are

essentially the same. We will note any differences when relevant.

4 No. 18-1310

under section 2G2.2(b)(7)(D), for an adjusted offense level of

40. After deducting three levels for acceptance of responsibility,

the PSR set the total offense level at 37. Both versions of the

PSR noted that the guidelines range for a total offense level of

37 and a criminal history Category V is 324 to 405 months’

imprisonment. Both PSRs took the position that Griffith’s prior

conviction for sexual abuse qualified him for enhanced

mandatory minimums under 18 U.S.C. § 2252A(b)(1), noting

that the enhanced terms for Counts I and II were fifteen to

forty years. Count III carried a minimum of ten years and a

maximum of twenty years, assuming that the enhanced

penalty applied. The revised PSR incorrectly stated that,

without the enhanced mandatory minimums, the guidelines

range would be 240 months. Neither party noticed that error

until the sentencing hearing, as we discuss below.

Griffith filed a number of objections to the PSR in the

district court, largely falling into three categories. First, he

objected to the application of the “specific offense characteristics”

provisions that added eighteen levels to the base offense

level. He contended that the additional levels assessed against

him were based on “arbitrary, unreasonable and unwarranted

sentencing factors which are inherent in the offense of conviction,

and patently inconsistent with the purposes of Title 18

U.S.C. Section 3553(a).” R. 18 at 1–2. He complained that the

“rote application” of those provisions “yields a draconian

guideline sentencing range of 324–405 months (27 to 33.75

years),” a result he characterized as “wholly incompatible”

with the section 3553(a) factors and “offensive to the ends of

justice.” R. 18, at 2. The crux of Griffith’s objection was that

No. 18-1310 5

guideline 2G2.2 is fundamentally flawed and that a belowguidelines

sentence was warranted:

In sum, Mr. Griffith’s objections to the specific

offense characteristics being assessed against him

are that the child pornography guidelines, as applied

to him on the facts of this case, are excessively

harsh and fundamentally incompatible with the

§3553(a) sentencing factors. … Accordingly, Mr.

Griffith asks [for] a substantial downward variance

from the guidelines at the time of sentencing.

R. 18 at 6-7. Griffith’s second major objection was that the court

should not apply enhanced mandatory minimum terms

against him based on his prior criminal sexual abuse conviction

under 18 U.S.C. § 2252A(b)(1). The district court agreed

with this position, finding that the enhanced mandatory

minimum terms did not apply to him, and that issue is not a

part of this appeal. Finally, he maintained that Criminal

History Category V over-represented his criminal history.

At the sentencing hearing, after resolving the enhanced

mandatory minimum issue in Griffith’s favor, the district court

noted that the statutory range for Counts I and II was five to

twenty years, and zero to twenty years for Count III. The court

then found that the total offense level was 37, the Criminal

History was Category V, and the guidelines range (which had

been calculated to be 324 to 405 months) would become 240

months because of the statutory cap for each count. The court

asked if the parties concurred “with the Court’s recitation as to

the applicable statutory and guideline provisions,” and both

6 No. 18-1310

parties replied, “Yes.” R. 37, Sent. Tr. at 19. The court then

adopted the revised PSR and its addendum.

After the parties presented argument regarding Griffith’s

objections and the section 3553(a) factors, the government

asked the court to clarify the guidelines range. The government

pointed out that because Griffith pled guilty to three separate

offenses involving discrete materials, his sentences could run

consecutively, meaning there was a sixty-year statutory cap,

not a twenty-year maximum. After asking the probation officer

to check the calculation, the court announced:

Yes. The gist is if I ran it consecutively, I could

impose a guideline range sentence which would be

the 324 to 405 months. In other words, the statutory

cap here would be 60 years—…—if run consecutively.

I understand that. … Do you want me to

refine that? I mean, I think it was—I guess all I’ll say

is I think it was an error for me to say earlier that the

guideline range becomes the statutory cap because

they could be run consecutively. … Is that an accurate

assessment?

R. 37, Sent. Tr. at 37-38. Defense counsel responded, “Yes.” Id.

After the defendant made a statement, the court addressed

the section 3553(a) factors. In the midst of a thorough discussion

of those factors, the court exhaustively addressed Griffith’s

arguments regarding “the fairness of these guidelines.”

R. 37, Sent. Tr. at 48. Catering her analysis to the facts of

Griffith’s offenses, the judge found appropriate the two-level

enhancement for material depicting prepubescent children, the

five-level addition for peer-to-peer exchange of material, and

No. 18-1310 7

the four-level bump for the violence of the images. The court

noted that it discounted the two-level enhancement for use of

a computer in nearly all cases because it was part of every

offense and so “not applying the two-level enhancement in

terms of a variance would be appropriate for use of [a] computer.”

R. 37, Sent. Tr. at 49. On the number of images, the

court noted that it lacked information regarding the length of

the videos or what was depicted on them, making it difficult to

compute a final number. She declined to use the “boilerplate”

computation of 75 images per video, finding that a four-level

enhancement for the number of images would be more

appropriate than the five levels indicated by the guidelines for

477 photographs and eleven videos:

I think that the—so, the variance, if you want to call

it that, for my recalculated guidelines would be 37.

I think that would be the appropriate reflection of

the seriousness of your conduct here.

R. 37, Sent. Tr. at 50. The court then found that Criminal

History Category V appropriately reflected Griffith’s criminal

conduct over a lengthy span of time. Before announcing the

sentence, the court remarked that Griffith was not the typical

child pornography defendant because most were level 34 with

a Criminal History Category I but Griffith was “squarely” a

Category V. R. 37, Sent. Tr. at 57. After defense counsel

confirmed that the court had addressed all of Griffith’s

arguments in mitigation, the judge sentenced Griffith to 240

months’ imprisonment on each count, to run concurrently, as

well as a term of supervised release. Griffith appeals.

8 No. 18-1310

II.

On appeal, Griffith contends that the district court committed

procedural error when it failed to correctly calculate the

guidelines sentence before imposing the 240-month sentence.

He also argues that the court imposed a substantively unreasonable

sentence. We apply the abuse of discretion standard in

reviewing whether sentencing decisions are reasonable. Gall v.

United States, 552 U.S. 38, 46 (2007); United States v. Smith, 860

F.3d 508, 514 (7th Cir. 2017). We first must ensure that the

district court committed no significant procedural error, such

as incorrectly calculating the guidelines range, failing to

consider the section 3553(a) factors, selecting a sentence based

on clearly erroneous facts, or failing to explain adequately the

chosen sentence. Gall, 552 U.S. at 51; Smith, 860 F.3d at 514.

Whether the district court committed procedural error is a

question of law that we review de novo. Smith, 860 F.3d at 514;

United States v. Mendoza, 510 F.3d 749, 754 (7th Cir. 2007).

In raising his procedural challenge, Griffith first asserts that

the court did not correctly calculate the guidelines range when

it initially adopted the PSR addendum’s erroneous guidelines

calculation. He also maintains that the court failed to rule on a

final guidelines range before pronouncing sentence. These

objections do not hold up to a fair reading of the sentencing

transcript.

After adopting the revised PSR and its addendum during

the sentencing hearing, the court became aware that the

document contained an error. The revised PSR calculated the

guidelines range as 324 to 405 months if the enhanced mandatory

minimum applied, and as 240 months if that statutory

No. 18-1310 9

enhancement did not apply. Prior to the hearing, neither party

noticed that the statutory cap was not limited to 240 months.

Griffith had pled guilty to three counts, each with its own cap

of twenty years (or 240 months), and those terms could be

imposed consecutively for a total of sixty years. As we noted

above, the government alerted the judge to this error after she

rejected the statutory enhancement and otherwise adopted the

PSR. The court agreed with the government’s proposed

correction and then found that the statutory maximum was

sixty years. As the judge clarified at the sentencing hearing,

that meant that the guidelines range was not capped at twenty

years but was in fact 324 to 405 months, which was well within

the sixty-year cap. Both parties expressly agreed that this was

an accurate assessment of the guidelines. In other words, the

court was no longer adopting the PSR in its entirety but was

amending its earlier ruling to account for the corrected

statutory cap of sixty years, making the correct guidelines

range 324 to 405 months. An argument that the court erred in

initially adopting the erroneous PSR is a non-starter. The court

recognized and corrected that error before announcing the

sentence. Any initial misstep was harmless because it did not

affect the court’s choice of sentence. United States v. Morris, 775

F.3d 882, 885 (7th Cir. 2015).

Griffith next claims that the court re-analyzed the five

specific offense characteristics for section 2G2.2 but never

recalculated the guidelines to reflect that new analysis. He is

referring, of course, to the district court’s discussion of a

downward “variance” equivalent to two levels for use of a

computer and one level for the total number of images. In

context, however, it is clear that the court was not re-analyzing

10 No. 18-1310

the specific offense characteristics in order to correct the

guidelines calculation but rather was expressing disagreement

with the properly calculated guidelines sentence.

After United States v. Booker, 543 U.S. 220 (2005), a sentencing

judge has the discretion to disagree with a particular

provision of the guidelines and to impose a non-guidelines

sentence that, in his or her judgment, is more consistent with

the statutory sentencing factors set out in section 3553(a).

Kimbrough v. United States, 552 U.S. 85 (2007); Smith, 860 F.3d at

517; United States v. Rosales, 813 F.3d 634, 637 (7th Cir. 2016). In

the context of addressing the section 3553(a) factors, the court

here explained that it routinely varied downward the equivalent

of two levels because child pornography offenses virtually

always involve the use of a computer, making the application

of section 2G2.2(b)(6) inappropriate, in the court’s opinion. The

court similarly disagreed with the “boilerplate” addition of

seventy-five images for each video, allowing for a downward

variance equivalent to one level. The court then stated that “the

variance, if you want to call it that, for my recalculated

guidelines would be 37.” R. 37, Sent. Tr. at 50. That mention of

level 37 was likely a misstatement because it did not take into

account that the court had also adopted the PSR recommendation

to allow a three-level reduction for acceptance of responsibility,

and so the variance was analogous to level 34, not level

37. The misstatement had no effect on the sentence, however,

because the court treated the variance as equivalent to a level

34 sentence, not a level 37 sentence.

In expressing its policy disagreement with the application

of certain specific offense characteristics, the court simply

analogized the variance to reductions in particular specific

No. 18-1310 11

offense characteristic levels. The court made this adjustment

under section 3553(a), and had no occasion to recalculate the

final guidelines level. In Criminal History Category V, the

analogous level 34 sentence yields a guidelines range of 235 to

293 months. The final sentence of 240 months is on the low end

of a level 34 sentence and a full 84 months below the bottom of

the properly calculated guidelines range. If, as Griffith argues,

the court had mistakenly failed to account for acceptance of

responsibility when deciding how much to vary, the sentence

would have been significantly higher. We have no doubt that

the court was not correcting the guidelines calculation but was

simply explaining a downward variance under section 3553(a)

from the properly calculated range by way of analogy to the

guidelines.

We emphasize that it was not necessary for the court to

analogize to the guidelines when explaining the downward

variance. United States v. Kuczora, 910 F.3d 904, 908 (7th Cir.

2018) (“the sentencing court need not frame its explanation of

a sentence in terms of a departure from the guidelines range,

but may instead focus on the appropriateness of the sentence

under § 3553.”) (quoting United States v. Courtland, 642 F.3d

545, 550 (7th Cir. 2011)). A court need only explain why a

sentence is appropriate under the statutory criteria. Kuczora,

910 F.3d at 908. So long as a court uses the properly calculated

guidelines range as a starting point, it may explain a decision

to vary from the range with reference to the section 3553(a)

factors alone. Kuczora, 910 F.3d at 908.

We also note that the court had not found any error in the

PSR’s calculation of the guidelines (other than the statutory cap

issue we noted earlier) and had no reason to recalculate the

12 No. 18-1310

guidelines. The court’s Statement of Reasons explaining the

sentence makes clear that the court intended for the three-level

reduction to be a variance because of a policy disagreement

with the properly calculated guidelines, not a change to the

guidelines calculation. R. 27, at 3, ¶ VI.D. And Griffith points

to no error in the district court’s guidelines calculation here.

Indeed, Griffith did not challenge the factual basis of the

guidelines calculation or the final offense level in the district

court. He argued instead that the resulting offense level was

inconsistent with the purposes of sentencing expressed in

section 3553(a). He did not deny, for example, that some of the

photographs depicted prepubescent minors, or that certain

images portrayed violence towards and sexual abuse of

toddlers. He conceded that he offered access to his Twitter

accounts in exchange for additional child pornography, that he

used a computer and that his offenses involved more than 600

images when calculated under guidelines standards. But in

conceding the basic facts underlying the calculation and the

result of the "rote application" of the guidelines provisions, he

objected only that the result produced a draconian and

unjustified sentence. In light of all of the circumstances, the

only reasonable reading of the sentencing transcript is that the

court understood and announced a correct calculation of the

guidelines and then varied downward by analogy to certain

guidelines factors during the discussion of the statutory

factors.

Finally, we can quickly dispense with any claim that the

final sentence was substantively unreasonable. When assessing

the substantive reasonableness of a sentence under the abuse

of discretion standard, we presume that a within-guidelines

No. 18-1310 13

sentence is reasonable. Rita v. United States, 551 U.S. 338,

347–56 (2007); United States v. Moore, 851 F.3d 666, 674 (7th Cir.

2017). That same presumption obviously applies to a belowguidelines

sentence, such as the one imposed here. Moore, 851

F.3d at 674. Griffith bears the burden of rebutting that presumption

by demonstrating that the sentence is unreasonably

high in light of the section 3553(a) factors. United States v.

Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).

Griffith attempts to surmount that challenge by arguing

that his collection of child pornography was relatively small;

that his crimes involved no contact offenses; that a twenty-year

term was a de facto life sentence for a man of his age and health;

that the sentence was unnecessary to deter recidivism because

of his age and the lengthy term of supervised release; and that

section 2G2.2 encourages unreasonably harsh sentences. The

district court carefully considered and addressed each of these

arguments, and Griffith’s claim on appeal amounts to a request

that we substitute our judgment for that of the district court. In

the usual course, it would be the government, not the defendant,

arguing that the court abused its discretion by granting

a significantly below-guidelines sentence. In any case, the

district court did not abuse its discretion in granting Griffith an

eighty-four month break from the bottom of the properlycalculated

guidelines sentencing range, and the sentence was

substantively reasonable.

AFFIRMED