                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 07a0366p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                             X
                                       Plaintiff-Appellant, -
 UNITED STATES OF AMERICA,
                                                              -
                                                              -
                                                              -
                                                                  No. 06-3436
              v.
                                                              ,
                                                               >
 WILLIAM A. FINK,                                             -
                                      Defendant-Appellee. -
                                                             N
                              Appeal from the United States District Court
                             for the Northern District of Ohio at Cleveland.
                           No. 05-00422—Peter C. Economus, District Judge.
                                            Argued: April 17, 2007
                                  Decided and Filed: September 7, 2007
 Before: SUHRHEINRICH and GIBBONS, Circuit Judges; HEYBURN, Chief District Judge.*
                                             _________________
                                                   COUNSEL
ARGUED: Michael A. Sullivan, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio,
for Appellant. Robert Smith, III, Cleveland, Ohio, for Appellee. ON BRIEF: Michael A. Sullivan,
ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellant. Robert Smith, III,
Cleveland, Ohio, for Appellee.
                                             _________________
                                                 OPINION
                                             _________________
       JULIA SMITH GIBBONS, Circuit Judge. Following a period of FBI surveillance and his
subsequent indictment, defendant William A. Fink pled guilty to distribution of child pornography.
The district court found the appropriate sentencing range under the Sentencing Guidelines to be 188
to 235 months. The district court sentenced Fink to 70 months imprisonment and five years of
supervised release. The government appeals, asserting that the sentence is substantively
unreasonable. For the following reasons, we agree and vacate the sentence and remand for
resentencing.




        *
           The Honorable John G. Heyburn II, Chief United States District Judge for the Western District of Kentucky,
sitting by designation.


                                                         1
No. 06-3436               United States v Fink                                                                  Page 2

                                                           I.
        From February through December 2004, Fink distributed child pornography through an
Internet chat room. In return, Fink received deliberately corrupted digital files, purported to be child
pornography, from an undercover FBI agent. At the relevant time, Fink was the pastor of a church
in Mentor, Ohio, and he used the church computer to store and transmit the images. Following
several months of online communication, and pursuant to a search warrant, federal agents seized
three computers from the church in June 2005. Two of those computers were later found to contain
numerous images of child pornography. At the time of the search, Fink gave consent to search his
personal computer, which also contained numerous saved images of child pornography.
        On August 31, 2005, a federal grand jury returned a one-count indictment charging Fink with
distribution of child pornography, in violation of 18 U.S.C. § 2252A(a)(2). On October 25, 2005,
Fink pled guilty to the indictment. At the sentencing hearing, the district court found the base
offense level for distribution of child pornography to be 22, pursuant to U.S.S.G. § 2G2.2(a)(2). The
court also made the following adjustments: a two-level increase pursuant to U.S.S.G. § 2G2.2(b)(2),
because the pornography involved prepubescent minors; a five-level increase pursuant to U.S.S.G.
§ 2G2.2(b)(3)(B), for distributing child pornography in expectation of a thing of value in return
(here, more child pornography); a four-level increase, pursuant to U.S.S.G. § 2G2.2(b)(4), because
the material portrayed images of sadistic conduct and/or depictions of violence; a two-level
increase pursuant to U.S.S.G. § 2G2.2(b)(6), because a computer was involved in the offense; and
a four-level increase pursuant to U.S.S.G. § 2G2.2(b)(7)(C), because the number of images
(including videos) retrieved was at least 300 but fewer than 600. With a three-level downward
adjustment for acceptance of responsibility, Fink’s total offense level was 36. Fink’s criminal
history category was Level I, resulting in a Guidelines range of 188 to 235 months. There were no
objections to the applicable Guidelines range.
        The Presentence Report (PSR) reveals that Fink sexually molested his daughter at least once
in the past. Roughly 15 years ago, when Fink’s daughter was approximately 12 years old, she
disclosed to her school teacher that her mother and father (Fink) had touched her inappropriately.
Fink called a social service agency to report the abuse and ultimately left the family’s home. Fink
subsequently worked with a social worker and sought mental health treatment and family
counseling. Fink returned to the family home after being gone roughly 18 months and continued
counseling for another 36 months.
        At the sentencing hearing, the district court acknowledged that it had read the indictment and
PSR and was familiar with Fink’s personal history. The court noted that Fink himself had been a
victim of sexual abuse and found that “it’s logical that this deviant behavior that the defendant
became involved in was probably caused to a degree by his sexual abuse.” The court went on to
note that it “had to balance [Fink’s] personal history with the need to deter the defendant and others
who have committed similar offenses, and to protect the public from further crimes.” The court
stated that it had considered sentences imposed on defendants for similar conduct and that it was
having difficulty reconciling Fink’s Guidelines range with another case in which “the individual was
charged with the same offense . . . before the mandatory minimum came into effect, where this Court
imposed a sentence of 49 months.” The court also noted        defendants in two other cases who had
received relatively short sentences for similar conduct.1
       After stating that the court had a duty to “avoid unwarranted sentencing disparities among
defendants with similar records who have been found guilty of similar conduct,” the court

         1
          The court later clarified that both the referenced cases predated the passage of the Prosecutorial Remedies and
Other Tools to End Exploitation of Children Today Act of 2003 (“PROTECT Act”). Pub. L. No. 108-066, 117 Stat. 650
(2003). The PROTECT Act prohibits computer generated child pornography and provides minimum sentences for
possession and distribution of child pornography, among other things.
No. 06-3436           United States v Fink                                                      Page 3

announced that a sentence of 70 months imprisonment and five years of supervised release was
“appropriate to meet the sentencing goals of punishment, deterrence and safety to the community.”
For its statement of reasons, the court attached a copy of the transcript of the sentencing hearing to
the judgment. The government noted its objection to the sentence and iterated its request for a
sentence within the Guidelines range. The government then filed a timely notice of appeal.
                                                  II.
        When considering sentencing decisions, this court reviews a district court’s factual findings
for clear error while reviewing the district court’s conclusions of law de novo. United States v.
Hazelwood, 398 F.3d 792, 795 (6th Cir. 2005). This court reviews a district court’s application of
the United States Sentencing Guidelines de novo. United States v. Gibson, 409 F.3d 325, 338 (6th
Cir. 2005). The court also reviews sentencing decisions for reasonableness. United States v.
Booker, 543 U.S. 220, 264-65 (2005). Because the district court’s sentence was not within the
Guidelines range, the rebuttable presumption of reasonableness does not apply to this sentence. See
United States v. Williams, 436 F.3d 706, 707-08 (6th Cir. 2006).
                                                  III.
        The only issue on appeal is whether the 70-month sentence imposed by the district court is
substantively reasonable within the meaning of Booker. After Booker, the Sentencing Guidelines
constitute an advisory rather than mandatory scheme. United States v. Richardson, 437 F.3d 550,
553 (6th Cir. 2006). “Without the ‘mandatory’ provision, the Sentencing Reform Act nonetheless
requires judges to take account of the Guidelines together with other sentencing goals.” Booker, 543
U.S. at 259. “While not bound to apply the Guidelines,” district courts “must consult those
Guidelines and take them into account when sentencing.” Id. at 264. As a consequence, “[18
U.S.C.] § 3553(a) remains in effect, and sets forth numerous factors that guide sentencing. Those
factors in turn will guide appellate courts, as they have in the past, in determining whether a
sentence is unreasonable.” Id. at 261.
        Under this scheme, the district court’s mandate is to impose “a sentence sufficient, but not
greater than necessary, to comply with the purposes” of § 3553(a)(2). United States v. Foreman,
436 F.3d 638, 644 n.1 (6th Cir. 2006). This court’s reasonableness review is split into two separate
inquiries: procedural reasonableness and substantive reasonableness. A sentence may be
procedurally unreasonable if “the district judge fails to ‘consider’ the applicable Guidelines range
or neglects to ‘consider’ the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects
what the judge deems an appropriate sentence without such required consideration.” United States
v. Webb, 403 F.3d 373, 383 (6th Cir. 2005). A sentence may be found substantively unreasonable
when the district court “select[s] the sentence arbitrarily, bas[es] the sentence on impermissible
factors, fail[s] to consider pertinent § 3553(a) factors or giv[es] an unreasonable amount of weight
to any pertinent factor.” United States v. Collington, 461 F.3d 805, 808 (6th Cir. 2006) (quoting
Webb, 403 F.3d at 385) (alteration in original). Here, we consider only whether the sentence
imposed by the district court is substantively reasonable.
        This court applies a form of proportionality review: “the farther the judge’s sentence departs
from the guidelines sentence . . . the more compelling the justification based on factors in section
3553(a) must be.” United States v. Davis, 458 F.3d 491, 496 (6th Cir. 2006) (internal quotation
marks omitted). Although it is true that there is no mathematical percentage or formula that can
define a reasonable sentence in the post-Booker world, see Collington, 461 F.3d at 808 n.2, it is also
true that “a large variance requires a greater explanation.” Id. at 809. Here, the district court varied
downward 118 months from the bottom of the Guidelines range (188 to 235 months) to arrive at a
sentence of 70 months. In these circumstances, the court’s justification for the substantial variance
must be a compelling one.
No. 06-3436           United States v Fink                                                     Page 4

        We therefore begin by examining the district court’s consideration of the relevant § 3553(a)
factors. Under 18 U.S.C. § 3553(a)(1), the court must consider the nature and circumstances of the
offense and the history and characteristics of the defendant. The district court noted Fink’s personal
history and characteristics; most notably it emphasized that he had suffered sexual abuse as a child.
The court, however, failed to mention that Fink had previously molested his daughter. Indeed, the
court’s statement that a 70-month sentence would permit Fink “to reflect on [his] criminal behavior
and to hopefully draw some insight into this deviant behavior, and treatment will help” is less
convincing in light of Fink’s previous transgression.
        Under 18 U.S.C. § 3553(a)(2)(A), the sentence imposed must reflect the seriousness of and
provide just punishment for the offense. Although the district court acknowledged that distribution
of child pornography was a serious offense, it also suggested that it was less serious than enticing
a child and emphasized that it did not appear that Fink intended to engage in sexual conduct with
children. However, as noted by the Fifth Circuit, this consideration is already incorporated into the
Guidelines: “Congress established a series of distinctly separate offenses respecting child
pornography, with higher sentences for offenses involving conduct more likely to be, or more
directly, harmful to minors than the mere possession offense. Similarly, the guidelines clearly
reflect consideration of whether and the degree to which harm to minors is or has been involved.”
United States v. Duhon, 440 F.3d 711, 718 (5th Cir. 2006).
        Fink’s sentence is also unlikely to afford adequate deterrence to criminal conduct of this
type, as required by 18 U.S.C. § 3553(a)(2)(B). Such a substantial variance in a case without
exceptional factual circumstances implies that a sentence at or near the statutory minimum is typical
for such offenses. Fink’s sentence also may not adequately “protect the public from further crimes
of the defendant,” as required by 18 U.S.C. § 3553(a)(2)(C). Fink’s molestation of his daughter 12
years prior to this offense could suggest that his behavior is a persistent problem. The district court
appears not to have considered this important factor.
       Under 18 U.S.C. § 3553(a)(6), the court must consider “the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found guilty of similar
conduct[.]” The district court placed considerable emphasis on this factor, but the cases to which
it compared Fink’s conduct are quite different from this case. As an initial matter, the cited cases
involved enticement of minors, not distribution of child pornography. Further, the district court
emphasized the 17-month sentence of one particular defendant, but the defendant in that case was
charged only with receipt of child pornography, not distribution.
        Moreover, the Guidelines have changed significantly between the time of the referenced
cases and when Fink’s offenses took place. The defendants in the purportedly comparable cases
were sentenced in 2001 and 2002, prior to Congress’s enactment of the PROTECT Act and the
concomitant revision to the Guidelines. The PROTECT Act reflects Congress’s intention to enhance
the consequences attached to distribution of child pornography, and the district court’s comparison
of Fink’s case to pre-PROTECT Act sentences effectively negates this Congressional prerogative.
Paradoxically, the court’s effort to avoid sentencing disparity will only create such disparity;
because this case is largely without exceptional circumstances, any subsequent defendant must either
be sentenced comparably to Fink (and therefore well below the Guidelines range), or at or near the
Guidelines range and thus have a drastically different sentence from Fink.
        Perhaps most problematic, in light of the statutory minimum, Fink’s sentence represents
almost the most extreme variance possible. The 70-month sentence is only ten months greater than
the 5-year minimum imposed by 18 U.S.C. § 2252A(b)(1); this leaves virtually no room to make
future distinctions between Fink’s case and the cases of worthy defendants that exhibit more
compelling factual circumstances. See Davis, 458 F.3d at 497, 499 (finding that a downward
variance to a one-day sentence based on the passage of time and age of the defendant left no room
for discretion for other defendants); cf. United States v. Moreland, 437 F.3d 424, 437 (4th Cir. 2006)
No. 06-3436               United States v Fink                                                                 Page 5

(finding that “[i]f Moreland’s circumstances are so compelling as to warrant a two-thirds reduction
from the bottom of the guideline range, it is difficult to imagine any meaningful limit on the
discretion of the district court.”); United States v. Haack, 403 F.3d 997, 1005 (8th Cir. 2005) (noting
in a pre-Booker setting that “[a] departure of this extent,” 120 months to 78 months, “leaves little
room for greater departures for defendants” who present even more compelling reasons for
leniency). Radical downward variances and departures are best reserved for the most deserving of
defendants. See United States v. Husein, 478 F.3d 318, 334 (6th Cir. 2007) (affirming a significant
downward departure while noting that “‘more worthy defendants’ than Husein are difficult to
imagine”). If a defendant with a history of sexual molestation who transmits hundreds of images
of child pornography still receives near the statutory minimum, a district court could not easily
justify sentencing other similarly situated offenders, or offenders who do not have a history of sexual
assault, to a greater sentence. Indeed, Fink’s sentence effectively erases all but one of the
adjustments added to Fink’s base sentence – distribution in expectation of receipt of a thing of value.
As a result, the sentence essentially attaches no consequence to Fink’s distribution of images of
children under 12 years of age, portraying sadistic conduct, using a computer, or the distribution of
hundreds of images.
        Here, the sentence given involves an extraordinary variance—a sentence roughly one-third
the length of the lower end of the Guidelines range. The absence of factors justifying such a radical
variance, as well as the presence of factors which 2the district court did not address, lead us to
conclude that the sentence imposed is unreasonable.
                                                         IV.
         For the foregoing reasons, we vacate the sentence and remand for resentencing.




         2
           Two recent cases provide insight into this court’s approach to these issues. Compare United States v. Borho,
485 F.3d 904 (6th Cir. 2007) (vacating and remanding a sentence of 72 months where the applicable Guidelines range
called for a sentence of between 210 and 262 months, after finding that the facts relied upon to justify the extreme
downward variance did not rise to the level of extraordinary circumstances), with United States v. Cherry, 487 F.3d 366
(6th Cir. 2007) (affirming a sentence of 120 months where the applicable Guidelines range called for a sentence of
between 210 and 262 months, after finding that the district court appropriately took into account the Guidelines range
and the circumstances of the particular defendant). We endorse the approach of these cases, and conclude that the appeal
before us most closely resembles Borho, rather than Cherry.
