Appeal from the United States District Court for the Eastern District of Missouri.
The opinion of the court was delivered by: Wollman, Circuit Judge.
Submitted: December 16, 2011
Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
Scott Kinsey Black pled guilty to two counts of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). The district court*fn1 sentenced him to sixty months' imprisonment, an eighteen-month downward variance from the United States Sentencing Guidelines (Guidelines) range. Black appeals his sentence, arguing that the court erred in failing to consider or adequately respond to his argument that the child pornography sentencing guidelines are overinflated. Black further contends that his sentence is substantively unreasonable because the district court did not fully consider the 18 U.S.C. § 3553(a) factors. Finally, he argues that the district court abused its discretion in imposing a special condition of supervised release restricting Black's access to the internet. We affirm.
Following the entry of his guilty plea, Black filed a sentencing memorandum with the district court, arguing that his history and characteristics and the nature of the offense weighed in favor of a sentence of probation. The memorandum also argued that the enhancements in the child pornography possession sentencing guidelines often result in a sentence significantly greater than necessary to serve the statutory purposes of sentencing.
At sentencing, the district court calculated Black's Guidelines range to be 78 to 97 months' imprisonment. In determining Black's sentence, the district court stated that the sadistic and masochistic images of children under the age of twelve found on Black's computer "are as bad as anything that we deal with[.]" Sentencing Tr. 18. After stating that it had read Black's sentencing memorandum, the district court discussed Black's mental health history and his lack of criminal history and then varied downward to a sentence of sixty months' imprisonment. During its discussion of the sentencing factors, the district court asked the parties if they wished to have any other factors discussed. Neither party responded, whereupon, having determined that a sixty-month sentence satisfied the statutory purposes of sentencing, the district court found that the sentence as pronounced avoided an unwarranted sentencing disparity.
The district court also sentenced Black to a lifetime of supervised release, one condition of which was that Black not use a computer or device that has access to the internet without the written approval of the probation office. The district court found that this condition was appropriate in light of the fact that Black had "actively used a retrieval computer-type device in order to execute the crime." Sentencing Tr. 24.
The presentence investigation report (PSR) revealed that Black had used Limewire, an online file sharing program, to download child pornography. Neither party objected to the factual findings in the PSR.
"In reviewing a challenge to a sentence, we 'must first ensure that the district court committed no significant procedural error.'" United States v. Dace, 660 F.3d 1011, 1013 (8th Cir. 2011) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). Failing to adequately explain a chosen sentence or failing to consider the § 3553(a) factors constitutes procedural error. United States v. Nissen, 666 F.3d 486, 490 (8th Cir. 2012) (citations omitted). "If a defendant fails to timely object to a procedural sentencing error, the error is forfeited and may only be reviewed for plain error." United States v. Phelps, 536 F.3d 862, 865 (8th Cir. 2008). "Under plain error review, the defendant must show: (1) an error; (2) that is plain; and (3) that affects substantial rights." Id. (citations omitted). "'An error affects a substantial right if it is prejudicial,' meaning that 'there is a reasonable probability the defendant would have received a lighter sentence but for the error.'" United States v. Maxwell, 664 F.3d 240, 246 (8th Cir. 2011) (quoting United States v. Mireles, 617 F.3d 1009, 1013 (8th Cir. 2010)). Even if that showing is made, "[t]his court will correct such an error 'only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.'" Id. (quoting United States v. Starfield, 563 F.3d 673, 674 (8th Cir. 2009)). Because Black failed to object with any specificity to the district court's alleged failure to consider Black's child pornography guidelines argument or to explain in any detail the reasons for the sentence, we review his claims for plain error only.
Black cites Rita v. United States, 551 U.S. 338(2007), for the proposition that when a non-frivolous reason for imposing a different sentence is presented, the sentencing judge "will normally . . . explain why he has rejected those arguments."
Id. at 357. Yet, as we have noted, "Rita also indicates that not every reasonable argument advanced by a defendant requires a specific rejoinder by the judge." United States v. Gray, 533 F.3d 942, 944 (8th Cir. 2008). "District courts generally have discretion to decide whether to respond to every argument." Dace, 660 F.3d at 1014 (citing Rita, 551 U.S. at 356).
Black raised his argument regarding the child pornography guidelines in his sentencing memorandum, but he did not reiterate it at the sentencing hearing, nor did he ask the district court to address it. Although the district court made no specific reference to the argument at the hearing, it indicated that it had read the sentencing memorandum. Indeed, it engaged in a colloquy with defense counsel regarding a portion thereof. Moreover, when the district court asked whether there were other factors that it should discuss, Black did not renew his overinflated child pornography guidelines argument. That a district judge does not mention a non-frivolous argument does not mean that it was not considered. See Gray, 533 F.3d at 944. Black has thus not shown plain error. Even if we assume that the district ...