                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-1007
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                Donna Mary Zauner

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                      for the District of Minnesota - St. Paul
                                  ____________

                             Submitted: June 15, 2012
                              Filed: August 16, 2012
                                  ____________

Before MURPHY, BRIGHT, and COLLOTON, Circuit Judges.
                           ____________

MURPHY, Circuit Judge.

       Donna Mary Zauner pled guilty to production of child pornography in violation
of 18 U.S.C. § 2251(a) and (e) for photographs she took of her young daughters at
ages six and two. The district court1 sentenced Zauner to 216 months, departing and

      1
       The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
varying downward from Zauner's guideline sentence of 360 months. Zauner
challenges her sentence as substantively unreasonable. We affirm.

       In early September 2010, Zauner contacted Alec Tafolla on an internet
clearinghouse for rideshares and made arrangements for him to drive her and her two
daughters, H.H. and B.Z., from Las Vegas, Nevada to her parents' home in upstate
New York. H.H. was two years old and B.Z. was six years old at the time. Tafolla
and Zauner maintained contact after he dropped them off in New York, and a few
weeks later Zauner had asked Tafolla to drive her and her daughters to Winona,
Minnesota to live with Alan Light, a man she had met on the internet. Several weeks
later Zauner informed Tafolla that the relationship was not working. He drove to
Winona to help her move out of Light's residence.

       When Light returned home and realized that Zauner had left with her daughters
while he was away, he checked his computer's internet history to try to determine
where she had gone. He spotted an email account he did not recognize and which
was later determined to belong to Tafolla. Light contacted the Winona police
department after discovering that pornographic images of Zauner's children had been
sent to that account.

       Police located Tafolla and Zauner in a local motel. Zauner was interviewed
and explained that during one of the trips Tafolla had discussed watching child
pornography and that he had told her a prior fiancé had let him rub his penis against
her five year old daughter's vagina. Zauner explained that Tafolla had requested
pictures of her daughters and would specify the photographs he wanted her to send
him. Zauner also turned over her cell phone which contained several images of her
daughters.

     Law enforcement officers reviewed text and email messages exchanged by
Zauner and Tafolla between September 11 and October 5, 2010. They were not able

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to recover all communications but discovered an image Tafolla had sent to Zauner of
a female child with semen and the message, "show that to [H.H.] and [B.Z.] and tell
them that's what I want to do." Tafolla sent another email with a video of a man
having intercourse with a minor girl that was renamed "me and [H.H.]" Zauner sent
Tafolla a photograph of B.Z. and Tafolla responded with a picture of his erect penis
and the message "show her this." Zauner then sent Tafolla photographs of B.Z. and
H.H. each naked from the waist down, seated in a chair with their legs spread to
expose their genitals. Next she sent a photograph in which she is holding B.Z. whose
legs are apart. Zauner is spreading B.Z.'s labia with her hand to expose her vagina.
Tafolla responded, "I want you to show this pic you took to [H.H.]."

       When questioned by police, Zauner first said that Tafolla had physically
threatened her during the trip to Winona, demanding pictures of her daughters. She
later acknowledged that this statement was false and that Tafolla had never threatened
her. Her children were placed in foster care in Minnesota and eventually relocated
to Pennsylvania to live with a relative.

       The government issued a four count indictment against Zauner for production
and distribution of child pornography, and Zauner agreed to plead guilty to one count
of production of child pornography in violation of 18 U.S.C. §§ 2251(a) and (e). The
parties stipulated that Zauner's total offense level would be 46 which included
enhancements for the ages of her daughters, the fact that she is their parent, her
participation in a pattern of activity involving prohibited sexual conduct, as well as
a three level reduction for acceptance of responsibility. Since Zauner had no criminal
history, she was in category I which capped the offense level at 43, leading to a
guideline sentence of life. Because this sentence exceeded the statutory maximum
of 30 years the statutory maximum became the guideline sentence. See U.S.S.G. §
5G1.1(a). The government agreed to move for a downward departure for substantial
assistance under U.S.S.G. § 5K1.1 if Zauner cooperated with Tafolla's prosecution.



                                         -3-
       The district court ordered a psychological evaluation before sentencing. The
evaluation revealed that Zauner's intellectual functioning measured near the level
considered to be mentally retarded, that she had grown up in an abusive household,
and had been sexually assaulted as a minor. The psychologist reported that Zauner
has a deep seated need for validation and affection and defers decisions to others. He
concluded that Tafolla "targeted, groomed, and manipulated Ms. Zauner to satisfy his
own prurient interests. . . . Ms. Zauner was desperate to be loved and accepted his
version of what was right and wrong."

      The government submitted a § 5K1.1 motion for substantial assistance but
argued at sentencing that any departure should be minimal in light of the fact that
Zauner had supplied it with misinformation and the "severe and terrible set of facts"
underlying the conviction. The government also sought restitution in the amount of
$10,000 for each child.

       The district court sentenced Zauner to 216 months and 15 years of supervised
release and ordered $20,000 in restitution owed jointly and severally with Tafolla.
This sentence represented a 40% reduction from Zauner's guideline sentence. The
court described the case as "very sad . . . in many, many ways" and stated

      There[] [are] some very basic needs that every child has a right to expect
      and one of those is that their mother will protect them from harm. And
      say what you will about Mr. Tafolla[,] [y]ou could have stopped this
      whole thing. He was a distance from you. There were no threats
      involved here and your children had a right to rely upon you to protect
      them . . . . There are very few cases where a mother is charged with
      participating in pornography in quite the way you have and I have to
      hold you accountable for that under the circumstances.

       After the district court announced its sentence, Zauner protested, saying, "I'm
not a sex offender . . . . [My daughters] were never harmed when I took the pictures.


                                         -4-
They weren't even aware that I took the pictures. They were not." The district court
responded that "you're their mother. They had a right to trust you and protect them
from this."

       On appeal Zauner argues that her sentence is substantively unreasonable in
light of her history of trauma, borderline intellectual functioning, lack of criminal
history, and relative culpability. The government argues that we cannot review the
reasonableness of Zauner's sentence because we would in effect be reviewing the
extent of the district court's downward departure under § 5K1.1. See United States v.
Billue, 576 F.3d 898, 905 (8th Cir. 2009) ("Absent an allegation that the district court
was motivated by an unconstitutional motive in arriving at its downward departure,
we may not review the extent of [such] a downward departure in the defendant's
favor." (citation omitted)).

       The district court made clear that its reduction was based on both the § 5K1.1
motion and its consideration of the sentencing factors listed in 18 U.S.C. § 3553(a).
Because the reduction included a variance as well as a departure, we review the
substantive reasonableness of the sentence imposed for abuse of discretion, Gall v.
United States, 552 U.S. 38, 51 (2007), and "judge the substantive reasonableness of
the sentence with reference to the factors enumerated in 18 U.S.C. § 3553(a)." United
States v. Wahlstrom, 588 F.3d 538, 547 (8th Cir. 2009). The district court has "wide
latitude to weigh the § 3553(a) factors . . . in determining an appropriate sentence."
United States v. Bridges, 569 F.3d 374, 379 (8th Cir. 2009). Where as here the
advisory guideline sentence is above the statutory maximum, the statutory maximum
sentence is presumed reasonable. United States v. Lazarski, 560 F.3d 731, 733 (8th
Cir. 2009). When a district court varies downward from a presumptively reasonable
guideline sentence, "it is nearly inconceivable that the court abused its discretion in
not varying downward still further." Lazarski, 560 F.3d at 733.




                                          -5-
       The district court made clear at sentencing that it was aware of the mitigating
information contained in Zauner's psychological report and her argument that she was
less culpable than Tafolla, who had been sentenced to 192 months. It also expressed
concern that Zauner "just do[es]n't . . . get it [that] [t]his is a very, very serious
offense." The district court asked about the well being of the children, received a
victim impact statement from Winona County Protective Services, and was presented
with the government's argument that

      [Defense counsel] referenced that the children hopefully didn't or don't
      appreciate what was done to them at the time. There will come a time
      when they'll appreciate what happened to them and why their mother
      was taken from them. . . . [They are] going to have to face counseling
      and treatment and overcome that hurdle. It's not over for the children.

The court concluded that the sentence was "significant punishment without more than
necessary to accomplish" the objectives of § 3553(a).

       This record demonstrates that the district court carefully considered the §
3553(a) factors in light of the mitigating evidence presented and the gravity of the
offense. It imposed a sentence well below the guideline sentence and 3 years above
the statutory minimum. We conclude that the district court did not abuse its
discretion and that Zauner's sentence is not unreasonable.

      Accordingly, we affirm the judgment of the district court.

BRIGHT, Circuit Judge, concurring.

       As an appellate court, we owe substantial deference to the sentencing decisions
of the district court. Gall v. United States, 552 U.S. 38, 51–52 (2007). In addition,
as the majority notes, our precedent has a difficult time imagining any scenario that
could warrant reversal of a downward departure. United States v. Lazarski, 560 F.3d

                                         -6-
731, 733 (8th Cir. 2009) (stating “it is nearly inconceivable that the [district] court
abused its discretion in not varying downward still further” from a presumptively
reasonable guideline sentence). I concur in this case due to the institutional discretion
owed the district court. However, I write separately to note the problems with the
child pornography guidelines and to express my personal disagreement with the
district court’s sentencing decision in this case.

        Congress delegated significant discretion to the Sentencing Commission to
initially formulate the guidelines. Mistretta v. United States, 488 U.S. 361, 367
(1989). Such delegation of authority was a great idea, as “[d]eveloping proportionate
penalties for hundreds of different crimes by a virtually limitless array of offenders
is precisely the sort of intricate, labor-intensive task for which delegation to an expert
body is especially appropriate.” Id. at 379. The Commission also provided “some
insulation from the distorting pressures of politics” and was in position to monitor,
study, and revise the guidelines over time. Frank O. Bowman, III, The Failure of the
Federal Sentencing Guidelines: A Structural Analysis, 105 Colum. L. Rev. 1315,
1324 (2005).2

       However, in several areas of the guidelines, including sex offenses, Congress
has stepped away from its reliance on the Sentencing Commission and “used a mix
of mandatory minimum penalty increases and directives to the Commission to change
sentencing policy . . . .” U.S. Sentencing Comm’n, Fifteen Years of Guidelines
Sentencing: An Assessment of How Well the Federal Criminal Justice System is
Achieving the Goals of Sentencing Reform 72–73 (November 2004). “In the
[Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today
Act (PROTECT Act) of 2003], Congress, for the first time since the inception of the

      2
        Guidelines generally are a good idea, but according to many observers, the
federal guidelines have not worked out well in practice. See, e.g., Frank O. Bowman,
III, The Failure of the Federal Sentencing Guidelines: A Structural Analysis, 105
Colum. L. Rev. 1315 (2005).

                                           -7-
guidelines, directly amended the Guidelines Manual and developed unique
limitations on downward departures from the guidelines in sex cases.” Id. While
Congress’s direct involvement in the guidelines is not inherently problematic, it is
suspect when it lacks significant policy discussion and analysis. See, e.g., United
States v. Beiermann, 599 F. Supp. 2d 1087, 1100 (N.D. Iowa 2009) (noting “the
principal or only reason given by the Commission itself for each of the amendments
[to the child pornography guidelines] is that the amendment was undertaken
exclusively or primarily at the behest of Congress”); see also Troy Stabenow,
Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of
the Child Pornography Guidelines (Jan. 1, 2009).

       District courts are also now free to categorically disagree with the guidelines,
at least in areas where they “ ’do not exemplify the Commission’s exercise of its
characteristic institutional role.’ ” Spears v. United States, 555 U.S. 261, 264 (2009)
(per curiam) (quoting Kimbrough v. United States, 552 U.S. 85, 109 (2007)). An
increasing number of district courts have exercised that discretion with respect to the
child pornography guidelines. See, e.g., Beiermann, 599 F. Supp. 2d at 1100 (N.D.
Iowa 2009) (categorically rejecting U.S.S.G. § 2G2.2 on policy grounds and listing
cases); United States v. Price, No. 09–CR–30107, 2012 WL 966971, at *11 (C.D. Ill.
Mar. 21, 2012) (noting similar issues with U.S.S.G. §2G2.1 and departing downward
at sentencing).

       In this area, the guidelines routinely place defendants near or over the
statutory-maximum sentence, eliminating any meaningful distinction between the
least and most culpable offenders. This case is a great example. The guidelines called
for Zauner to be sentenced to thirty years in prison and would have recommended a
life sentence if they had not been constrained by the statutory-maximum punishment.
See 18 U.S.C. § 2251(e). Yet looking at Zauner’s offense conduct alone, she does not
rank among the worst child pornography offenders deserving of the statutory-
maximum sentence. She was a first-time offender and her conduct did not trigger

                                         -8-
several of the possible enhancements under U.S.S.G. § 2G2.1. There is also nothing
in the record to indicate the pictures were distributed beyond those people directly
involved in the offense conduct. On the facts of this case, I do not believe any
reasonable judge would have sentenced Zauner to the recommended sentence under
the guidelines. The district court apparently agreed, exercising its prerogative to
depart downward to sentence Zauner to eighteen years in prison—three years above
the mandatory minimum. And where the guidelines are out of line and increasingly
disregarded by sentencing judges, the mere fact of a downward departure should not
insulate the district court’s sentence from any type of meaningful review. In addition,
in cases such as this, where the guidelines obviously do not fit, a sentencing judge
should give careful assessment to the sentencing requirements of § 3553(a) and state
the judge’s reasons and conclusions on the record.

       I also write separately because I personally believe the sentence was excessive.
As the Supreme Court has highlighted several times: “ ‘It has been uniform and
constant in the federal judicial tradition for the sentencing judge to consider every
convicted person as an individual and every case as a unique study in the human
failings that sometimes mitigate, sometimes magnify, the crime and the punishment
to ensue.’ “ Pepper v. United States, 131 S. Ct. 1229, 1239–40 (2011) (quoting Koon
v. United States, 518 U.S. 81, 113 (1996)). And in a situation where the guidelines
no longer provide any guidance, it is incumbent on the sentencing judge to provide
a thorough discussion of the § 3553(a) factors and how they relate to the ultimate
sentencing decision. Considering all of the facts of this case in light of the § 3553(a)
factors, I do not believe any sentence over the mandatory minimum was warranted.

       First, Zauner’s troubled history and diminished mental capacity were not given
sufficient weight by the district court. Her background and psychological issues were
well documented by Dr. Ernest Boswell, the psychologist who interviewed Zauner
in preparation of sentencing. The psychologist found Zauner exhibited a pattern of
“general passivity in dealing with the world around her” and “[f]rom an early age she

                                          -9-
has deferred decisions to others around her.” He also found “a history of significant
family dysfunction, early onset of alcohol use, rape and impaired intellectual
abilities.” Dr. Boswell also tested Zauner’s intellectual function and she scored in the
fourth percentile of overall cognitive ability—”[s]tated differently, 96% of adults
have superior intellectual functioning to Ms. Zauner.”

       Zauner’s background is especially important in light of Dr. Boswell’s
conclusions about Tafolla, who participated in the crime. While Dr. Boswell was not
able to interview Tafolla, he had access to Tafolla’s and Zauner’s statements to law
enforcement and other police reports from the investigation. Dr. Boswell found that
“the psychological evidence suggests that Tafolla is a pathological individual who
targeted, groomed and manipulated Ms. Zauner via a series of orchestrated statements
and behaviors to engage in activities aimed at gratification of his aberrant and illegal
sexual impulses” and that “Zauner was not the initiator or dominant individual in the
sequence of events that resulted in the sexual exploitation of her daughters.”

       Generally speaking, the leader of a criminal act should be punished more
severely than the followers. See, e.g., U.S.S.G. § 3B1.1(a). In this case, Tafolla preyed
upon Zauner, requesting the pornographic pictures of her children, and manipulating
her into believing her actions were acceptable. As the prime actor in this offense, and
the one with the “aberrant and illegal sexual impulses,” I believe he should have
received the stiffer sentence. Instead, his first victim, Zauner, got the heavier penalty.
Tafolla was sentenced to 192 months (16 years) while Zauner received two years
more. In cases where the guidelines realistically should not apply, as in this case, I
suggest that the district court focus on the statutory requirements of § 3553(a) and
particularly the admonition that district court “shall impose a sentence sufficient, but
not greater than necessary, to comply with the purposes” of the statute. See 18 U.S.C.




                                          -10-
§ 3553(a). This is a heavy sentence for a first time offender who was led into the
offense by an unscrupulous predator. Fifteen years—the mandatory minimum—was
more than sufficient.

                      ______________________________




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