                        RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 13a0169p.06

                UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


                                                X
                          Plaintiff-Appellant, -
 UNITED STATES OF AMERICA,
                                                 -
                                                 -
                                                 -
                                                     No. 13-3150
          v.
                                                 ,
                                                  >
                                                 -
                         Defendant-Appellee. -
 RICHARD BISTLINE,
                                                N
                  Appeal from the United States District Court
                 for the Southern District of Ohio at Columbus.
              No. 09-0085-001—James L. Graham, District Judge.
                                    Argued: June 19, 2013
                             Decided and Filed: June 27, 2013
 Before: GILMAN and KETHLEDGE, Circuit Judges; and LUDINGTON, District
                             Judge.*
                                     _________________
                                          COUNSEL
ARGUED: Benjamin C. Glassman, UNITED STATES ATTORNEY’S OFFICE,
Cincinnati, Ohio, for Appellant. Jonathan T. Tyack, TYACK, BLACKMORE &
LISTON CO., L.P.A., Columbus, Ohio, for Appellee. ON BRIEF: Benjamin C.
Glassman, UNITED STATES ATTORNEY’S OFFICE, Cincinnati, Ohio, for Appellant.
Jonathan T. Tyack, TYACK, BLACKMORE & LISTON CO., L.P.A., Columbus, Ohio,
for Appellee.
                                     _________________
                                         OPINION
                                     _________________
        KETHLEDGE, Circuit Judge. In a sense we have already decided this case.
“Richard Bistline pled guilty to knowingly possessing 305 images and 56 videos of child
pornography on his computer. Many, if not a majority, of those images and videos
depicted 8- to 10-year-old girls being raped by adult men. Under the Sentencing

        *
        The Honorable Thomas L. Ludington, United States District Judge for the Eastern District of
Michigan, sitting by designation.


                                                1
No. 13-3150         United States v. Bistline                                        Page 2


Guidelines, Bistline’s recommended sentence was 63 to 78 months’ imprisonment. The
district court rejected that recommendation and instead sentenced Bistline to a single
night’s confinement in the courthouse lockup, plus ten years’ supervised release.”
United States v. Bistline, 665 F.3d 758, 760 (6th Cir. 2012) (Bistline I). The government
appealed that sentence on grounds that it was substantively unreasonable.

        We agreed and vacated Bistline’s sentence. We held that Bistline’s guidelines
range should have been—but had not been—“the starting point for his sentence.” Id. at
764. Turning to the sentencing factors set forth in 18 U.S.C. § 3553(a), we said that
many of the district court’s comments “served to diminish” the seriousness of Bistline’s
offense, id.; that Bistline’s crime caused “great harm” to its victims, id. at 766; and that
“a term of supervised release is simply not enough to reflect the seriousness of the
offense here[,]” id.    We said that “‘[g]eneral deterrence is crucial in the child
pornography context[,]’” and that “we do not see how Bistline’s sentence would
meaningfully deter him or anyone else.” Id. at 767 (first alteration in original) (quoting
United States v. Camiscione, 591 F.3d 823, 834 (6th Cir. 2010)). We said that “[w]e do
not mean to imply that only a sentence in or around” Bistline’s guidelines range of 63
to 78 months’ imprisonment “will avoid disparities with other similar defendants[,]” but
that “we do not see how the sentence imposed here avoids them.” Id. We said that “the
district court was entitled to consider” Bistline’s age, health, and family circumstances,
but that “they cannot justify the sentence imposed here.” Id. And we cautioned that
“criminals with privileged backgrounds are [not] more entitled to leniency than those
who have nothing left to lose.” Id. at 766 (internal quotation marks omitted). We
concluded that “the sentence imposed in this case does not remotely meet the criteria that
Congress laid out in § 3553(a)”; and we remanded Bistline’s case “for prompt imposition
of one that does.” Id. at 768.

        And yet, despite all these unequivocal statements by our court, the district court
again sentenced Bistline to one day’s confinement and ten years’ supervised release.
The court made only one change to Bistline’s sentence, extending his period of home
confinement from 30 days to three years. The government brought this appeal.
No. 13-3150         United States v. Bistline                                         Page 3


        “We review a district court’s sentencing decision for substantive reasonableness
under the abuse-of-discretion standard.” United States v. Shaw, 707 F.3d 666, 674 (6th
Cir. 2013). “A sentence is substantively unreasonable if the district court selects a
sentence arbitrarily, bases the sentence on impermissible factors, fails to consider
relevant sentencing factors, or gives an unreasonable amount of weight to any pertinent
factor.” Id. (internal quotation marks omitted).

        On remand the district court repeated many of the same errors that it made during
Bistline’s first sentencing. The court again failed to make the Sentencing Guidelines its
“starting point” and “initial benchmark” for choosing Bistline’s sentence. See Bistline
I, 665 F.3d at 761–64; see also Peugh v. United States, ___ S. Ct. ___, 2013 WL
2459523, at *5 (June 10, 2013) (“the Guidelines should be the starting point and the
initial benchmark”). Indeed on remand the district court never mentioned Bistline’s
guidelines range. The court did say that it “continues to have significant concerns about
the helpfulness” of “the guidelines relating to child pornography[,]” and that it has “a
continued disagreement with the range of sentences that result under these guidelines in
the average case[.]” But those comments were merely conclusions, rather than reasons
to disagree with the guidelines on policy grounds.

        The court did offer reasons for its disagreement with two guideline enhancements
in particular. Specifically, the court criticized the enhancement for Bistline’s use of a
computer in connection with his offense, see U.S.S.G. § 2G2.2(b)(6), stating that
“[c]omputers are present in every case.” The court similarly criticized the enhancement
for the number of images that Bistline possessed, see U.S.S.G. § 2G2.2(b)(7), stating that
“almost every case involves hundreds of images and videos.” Those criticisms are
legitimate so far as they go, although it is surely little comfort for Kylie and Vickie—the
victims whose statements were read at Bistline’s sentencing hearings—that Bistline
viewed images of dozens of other girls being raped in addition to viewing theirs. But
the court entirely overlooked that Bistline’s base-offense level, standing alone, would
place his guidelines range in the neighborhood of three years. And the court continued
to treat the issue of the guidelines’ validity strictly as a question of social science. That
No. 13-3150         United States v. Bistline                                        Page 4


is true despite our statements in the first appeal that it is “Congress’s prerogative to
dictate sentencing enhancements based on a retributive judgment that certain crimes are
reprehensible and warrant serious punishment as a result”; and that “Congress’s long and
repeated involvement in raising the offense levels for § 2G2.2 makes clear that the
grounds of its action were not only empirical, but retributive—that they included not
only deterrence, but punishment.” Bistline I, 665 F.3d at 764. The district court did not
acknowledge, much less refute, those bases for Bistline’s guidelines range. Taken as a
whole, therefore, the district court’s comments did not begin to approach the showing
necessary for a court to “declin[e] to apply § 2G2.2 out of hand[,]” id.—which is exactly
what the district court did here.

        The district court likewise continued to diminish the “seriousness of [Bistline’s]
offense.” 18 U.S.C. § 3553(a)(2)(A). Indeed the court’s comments with regard to
Bistline’s culpability during the second sentencing hearing were remarkably similar to
its comments during the first one. For example, the court stated that Bistline was not as
culpable as some other defendants because he was “not a sophisticated computer user”
and did not “know how to put the [LimeWire] program on his computer.” (Bistline’s son
put LimeWire on Bistline’s computer for him.) But downloading LimeWire was not the
offense here; downloading child pornography was. And Bistline himself chose to
download child pornography onto his computer “affirmatively, deliberately, and
repeatedly, hundreds of times over, in a period exceeding a year.” Bistline I, 665 F.3d
at 765. The district court likewise blamed “the technology involved where some of the
same files are downloaded over and over again by these automatic downloading
programs.”     But that notion—that these images “automatic[ally]” downloaded
themselves onto Bistline’s computer—is utterly without support in the record.
LimeWire did not commit Bistline’s offense; Bistline did. And thus, once again, “[w]e
can only read the court’s comments . . . to reflect a sense that the offense is not serious,
and that the hundreds of images found on Bistline’s computer—a great many of them
showing young girls being raped—somehow sought out Bistline more than he sought out
them.” Bistline I, 665 F.3d at 765.
No. 13-3150        United States v. Bistline                                        Page 5


       The district court likewise put little weight on the need for Bistline’s sentence to
deter other potential violators of the child pornography laws. The court did say that “an
informed observer who knew about the unique facts of this case would also believe that
this sentence was sufficiently severe to adequately deter others from engaging in this
kind of offense conduct.” But that statement is merely conclusory. And we otherwise
fail to see how a period of home confinement would afford adequate deterrence for the
crime at issue here—particularly given that Bistline, by his own admission, was already
largely self-confined to his home.

       The district court also put an unreasonable amount of weight on Bistline’s age
and poor health. Although in exceptional cases a court may rely on these factors to
support a below-guidelines sentence, see U.S.S.G. §§ 5H1.1, 5H1.4, 5K2.22, they simply
“cannot justify the sentence imposed here.” Bistline I, 665 F.3d at 767. Bistline’s age
and health issues are not as extraordinary as he and the district court seem to think they
are. There are plenty of older convicts with medical conditions of their own in federal
prisons. And prison is stressful and less than ideal medically for many people who are
sent there. Bistline may be elderly and in poor health, but “the elderly do not have a
license to commit crime, and adequate medical care is available in federal prisons.”
United States v. Moreland, 703 F.3d 976, 991 (7th Cir. 2012) (Posner, J.) (citation
omitted).

       We will not belabor the issue further. Throughout the process of imposing
Bistline’s first sentence and then his second, the district court placed excessive weight
on the few factors that favor a lesser sentence, while minimizing or disregarding
altogether the serious factors that favor a more severe one. The result once again was
an abuse of the district court’s discretion. The sentence imposed on remand does not
“reflect the seriousness of the offense”; it does not meet the retributive goal of
“provid[ing] just punishment for the offense”; and it does not “afford adequate
deterrence to criminal conduct[,]” among other deficiencies. 18 U.S.C. § 3553(a)(2)(A),
(B). Bistline’s sentence is substantively unreasonable.
No. 13-3150        United States v. Bistline                                        Page 6


       The government also requests that we reassign the case to a different district
judge for resentencing. In deciding whether to reassign a case, we consider, among other
factors, “whether the original judge would reasonably be expected . . . to have substantial
difficulty in putting out of his mind previously-expressed views or findings[.]” United
States v. Garcia-Robles, 640 F.3d 159, 168 (6th Cir. 2011) (first alteration in original)
(quoting Bercheny v. Johnson, 633 F.2d 473, 476–77 (6th Cir 1980)). The record in this
case makes clear that the district judge would have such difficulty here. Moreover, on
remand, the district judge said the following: “If I have got to send somebody like Mr.
Bistline to prison, I’m sorry, someone else will have to do it. I’m not going to do it.”
We therefore grant the government’s request to reassign the case.

       Bistline’s sentence is vacated, and the case remanded for reassignment and
resentencing.
