                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-13-2007

USA v. Estep
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2389




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 06-2389


                           UNITED STATES OF AMERICA

                                            v.

                         CHRISTOPHER D. ESTEP, Appellant



                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                             (D.C. Criminal No. 05-cr-00419)
                     District Judge: Honorable William W. Caldwell


                       Submitted Under Third Circuit LAR 34.1(a)
                                    March 9, 2007

       Before: SLOVITER and AMBRO, Circuit Judges, and POLLAK,* District Judge

                              (Opinion filed June 13, 2007)




                                        OPINION




   *
     Honorable Louis H. Pollak, Senior District Judge for the United States District Court
for the Eastern District of Pennsylvania, sitting by designation.
POLLAK, District Judge:

       Christopher Estep pled guilty in the United States District Court for the Middle

District of Pennsylvania1 to a single count of possessing child pornography. He now

appeals from his 97-month prison sentence, arguing that the sentence cannot be found

“reasonable” because the record does not reflect that the District Court gave “meaningful

consideration [to] the sentencing factors set forth in 18 U.S.C. § 3553(a).” United States

v. Cooper, 437 F.3d 324 (3d Cir. 2006). For the reasons set forth below, we are not

persuaded by Estep’s view of the record in this case, and we will affirm.

                                            I.

       In early 2005, an undercover FBI operation revealed that Estep was receiving and

transmitting child pornography on two computers belonging to the Huntingdon Area

School District in Huntingdon, Pennsylvania, where he worked as a middle-school and

high-school guidance counselor. According to the Presentence Investigation Report

(PSR) prepared by the United States Probation Office, Estep “admitted transmitting child

pornography on approximately forty to fifty occasions throughout the school year,” and

handwritten notes found in Estep’s office “contained a log of the screen names of

numerous people with whom he traded child pornography.” Further, “[a] review of the

computers revealed approximately sixty images of child pornography . . . and included

images of prepubescent minors or minors under the age of twelve, and images that

   1
    The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). See United States v. Grier, 475
F.3d 556, 561 (3d Cir. 2007) (en banc).

                                             2
portrayed sadistic or masochistic conduct and other depictions of violence.” Estep was

subsequently charged with and pled guilty to one count of possession of child

pornography in violation 18 U.S.C. § 2252A(a)(5)(B).

       Estep did not lodge any objections to the PSR and did not challenge the PSR’s

calculation of an advisory guidelines range of 97–120 months. However, Estep filed a

detailed sentencing memorandum in which he argued that the behavior admitted was

entirely out of character for him; that it had resulted in large part from depression and

from the fact that “[h]is inhibitions were down as a result of excessive drinking”; and that

he had “come to his senses and sought help” after his activities were discovered and had

“turned his life around.” For these reasons, Estep contended that 18 U.S.C. § 3553

required a below-guidelines sentence, because a sentence below the 97–120 month

advisory range would be “sufficient, but not greater than necessary,” 18 U.S.C. § 3553(a),

to achieve the statutory purposes of sentencing.

       Estep’s memorandum further analyzed the § 3553 sentencing factors, specifically

the “history and characteristics of Christopher Estep” (emphasizing Estep’s education,

employment, supportive family, and post-offense treatment); the “nature and

circumstances of the offense” (emphasizing the “downward spiral” created by Estep’s

descent into alcoholism); and the “need for the sentence imposed to promote certain

statutory objectives” such as deterrence and protecting society from further crimes by the

defendant (arguing that “Estep is not a pedophile” and citing a psychologist’s report

stating that his criminal conduct was “atypical” and that he presented a “low risk for


                                              3
future sexual misconduct”).

       At the April 12, 2006 sentencing hearing, the District Court first received

supportive testimony from Estep’s pastor.2 The judge then informed defense counsel that

he had “studied and read thoroughly your sentencing memorandum . . . so we’re now

prepared to proceed with sentencing.” Defense counsel spoke briefly, stating that she was

“certain that [the court had] reviewed my sentencing memorandum,” and reemphasizing

Estep’s lack of a criminal record and the contention that Estep’s involvement with child

pornography was short-lived, completely out-of character, and fueled by untreated

alcohol dependency. Estep then made a statement in which he admitted guilt (“[t]his is

disgusting and foul, and I did it”) and stated that he didn’t want to “waste the Court’s

time” by offering “mitigating circumstances” and that he “probably d[id]n’t deserve any

mercy.” Nevertheless, Estep stated his desire to eventually put his life back in order,

“find work and be able to provide for [his wife] again,” and asked the court “not to maybe

throw the entire book at me.”

       Government counsel then presented its response to the arguments made in Estep’s



   2
     According to the government, “[p]rior to the sentencing hearing, the district court had
both counsel and the probation report to his chambers. The court stated inter alia that he
had read defense counsel’s sentencing memorandum and accompanying exhibits and . . .
that he intended to impose a sentence below the calculated guideline range.” Estep does
not make mention of the meeting. Assuming it occurred, this meeting would appear to
have been conducted off-the-record, as it is not reflected in the record before us or on the
District Court docket. However, we note that the government’s account is consistent with
remarks made at the on-the-record hearing, specifically the government’s request that the
court “take a look at [the pornographic images in question] if you are considering going
below the guidelines.”

                                              4
sentencing memorandum and at the hearing, arguing for a within-guidelines sentence.

The government emphasized the seriousness of the crime; that Estep was employed as a

middle-school and high-school guidance counselor at the time of the offense; that the

offense involved “trading[] child pornography during school hours on a school

computer”; and that Estep was drinking heavily, at work, in a school, while committing

the offense. The government also noted that Estep was in treatment for alcoholism and

depression, but was not in treatment to “cure whatever urges he had” to “download[]

child pornography.” Describing the images traded by Estep as “filthy[ and] disgusting,”

the government stressed the effect of appellant’s crime on the child victims who were

“sexually abused during the production of the images.” Finally, government counsel

asked the court—if it was considering a below-guidelines sentence—first to review a

binder containing copies of the pornographic images possessed and traded by Estep. See

supra note 2.

      Stating that it felt “an obligation to look at th[is] material,” the court adjourned the

hearing for approximately ten minutes in order to examine the images and other materials

in camera. After reconvening the hearing, the court delivered its reasoning and sentence:

             This is a very difficult case, obviously, because there’s something to
      be said on behalf of the defendant who has had no prior involvement with
      the law, but I also have to consider the seriousness with which the law
      considers child pornography. It’s hard for me as a person to understand
      how anybody can be interested in that sort of thing, and it’s very disgusting.
             But I think, as has been pointed out by [the government attorney],
      [the probation officer]’s comment in the presentence report about the true
      victims of this crime are children, and the only way that this is ever going to
      end is for people to understand the seriousness of trading and passing this


                                              5
       stuff on which just perpetuates the offense.
              I, therefore, conclude that the Government is justified in asking for a
       sentence within the sentencing guideline range.

       The court then sentenced Estep to 97 months, recommended “that the defendant be

evaluated for participation in the sex offender treatment program at FCI Butner,” and

imposed a fine and other conditions of sentence not challenged on appeal.

                                             II.

       On appeal, Estep argues that the District Court “fail[ed] to properly explain on the

record the rationale for imposing a 97-month sentence,” as required under “Booker,[3] this

court’s decision in [United States v. ]Cooper, and 18 U.S.C. § 3553.” Specifically, he

argues that the District Court failed to “articulat[e] how Estep’s sentence reflected

meaningful consideration of the § 3553(a) sentencing factors.” The government counters

that the District Court “adequately consider[ed] the [§ 3553(a)] factors . . . and

explain[ed] the reasons for the sentence imposed.”

       Post-Booker, “the Supreme Court direct[s] appellate courts to review sentences for

reasonableness . . . . guided by the factors set forth in 18 U.S.C. § 3553(a),4 the same


   3
     See United States v. Booker, 543 U.S. 220, 245 (2005) (severing and excising the
statutory provision which had theretofore made the United States Sentencing Guidelines
mandatory and “mak[ing] the Guidelines effectively advisory”).
   4
    (a) Factors To Be Considered in Imposing a Sentence. . . . The court, in
determining the particular sentence to be imposed, shall consider—
       (1) the nature and circumstances of the offense and the history and
       characteristics of the defendant;
       (2) the need for the sentence imposed—
               (A) to reflect the seriousness of the offense, to promote respect for
               the law, and to provide just punishment for the offense;

                                              6
factors the Court direct[s] district judges to consider when sentencing defendants under

the advisory guidelines.” Cooper, 437 F.3d at 327. This reasonableness review proceeds

in two steps.

       In the first step, the reviewing court must satisfy itself that the district court

actually exercised its sentencing discretion. Id. at 329. To this end, “[t]he record must

demonstrate the trial court gave meaningful consideration to the § 3553(a) factors.” Id.5

We have emphasized that this test is not a mechanical one; rather, it should reflect the

district court’s consideration of the record as a whole. Therefore, while “a rote statement

of the § 3553(a) factors” will not always be sufficient evidence of the district court’s

“meaningful consideration” of those factors, it is also the case that “[t]he court need not

discuss every argument made by a litigant if an argument is clearly without merit . . . [or]


               (B) to afford adequate deterrence to criminal conduct;
               (C) to protect the public from further crimes of the defendant; and
               (D) to provide the defendant with needed educational or vocational
               training, medical care, or other correctional treatment in the most
               effective manner;
      (3) the kinds of sentences available;
      (4) the kinds of sentence and the sentencing range established for—
               (A) the applicable category of offense committed by the applicable
               category of defendant as set forth in the guidelines . . . ;
      (5) any pertinent policy statement . . . issued by the Sentencing Commission
      . . . that . . . is in effect on the date the defendant is sentenced[;]
      (6) the need to avoid unwarranted sentence disparities among defendants
      with similar records who have been found guilty of similar conduct; and
      (7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a).
   5
    Cf. United States v. Webb, 403 F.3d 373, 385 n.8 (6th Cir. 2005) (“Post-Booker, we
continue to expect district judges to provide reasoned explanation for their sentencing
decisions in order to facilitate appellate review.”).

                                               7
discuss and make findings as to each of the § 3553(a) factors if the record makes clear the

court took the factors into account in sentencing.” Id. (citations omitted).

       Assuming the reviewing court is satisfied that the district court exercised its

sentencing discretion by giving meaningful consideration to the § 3553(a) factors, the

second step of the reviewing court is to “ascertain whether those factors were reasonably

applied to the circumstances of the case.” Id. at 330. “In doing so, we apply a deferential

standard, the trial court being in the best position to determine the appropriate sentence in

light of the particular circumstances of the case.” Id. at 330 & n.8. “Appellant[] . . .

bear[s] the burden of proving the unreasonableness of [his] sentence[] on appeal.” Id. at

332.

                                              III.

       Estep focuses exclusively on the first phase of our reasonableness review, arguing

that the District Court did not produce a record of its reasoning sufficient to allow proper

review by this panel. It is, of course, true that a district court’s consideration of the

sentencing factors and arguments of counsel may not be conducted wholly within the

recesses of the judge’s mind. Otherwise, the sentencing judge could simply “have a

stamp that said ‘I have considered the statutory factors,’ which he placed on every

guidelines sentence that he imposed.” United States v. Cunningham, 429 F.3d 673, 676

(7th Cir. 2005). But the record in this case shows that the court did not merely “rubber

stamp” Estep’s sentence. To the contrary, the record, viewed as a whole, shows that the

court heard and gave meaningful consideration to both the defendant’s and the

                                               8
government’s arguments before exercising its discretion by imposing a within-guidelines

sentence. Cf. Cooper, 437 F.3d at 331 (“[A] within-guidelines range sentence is more

likely to be reasonable than one that lies outside the advisory guidelines range.”).

       Although the District Court’s final statement of reasons was relatively brief, when

read in the context of the full proceedings it is sufficient to establish that the court gave

meaningful consideration both to appellant’s arguments and to the factors set forth by

§ 3553(a).6 The court was clearly familiar with the “history and characteristics of the

offender,” 18 U.S.C. § 3553(a)(1), and in some sympathy with Estep’s claim that he was

a generally upright citizen who had, for a short time, gone horribly astray. However, the

court found these considerations to be less important to its decision than the need for the

sentence to reflect the seriousness of Estep’s crime, to promote respect for the law, and to

provide effective deterrence. See id. § 3553(a)(2)(A), (B). In addition, the court

considered the applicable guidelines range as required by § 3553(a)(4) and found that a

sentence at the bottom of that range was appropriate. Finally, the court’s

recommendation that appellant be evaluated for participation in a particular FCI Butner

treatment program indicates that the court considered “the kinds of sentences available”

and the “need . . . to provide the defendant with . . . correctional treatment in the most


   6
     Cf. Cooper, 437 F.3d at 330 n.8 (“We are well aware that . . . [d]istrict judges
normally deliver their decisions on sentencing from the bench, just after, and sometimes
in the course of, the presentation of numerous arguments and even evidence as to the
permissible range and proper sentence. These often spontaneous remarks are addressed
primarily to the case at hand and are unlikely to be a perfect or complete statement of all
of the surrounding law.” (internal quotation marks omitted)).

                                               9
effective manner.” See id. § 3553(a)(3), (a)(2)(D).

         In sum, this is not a case where we are concerned that the District Court

succumbed to “the temptation to a busy judge to impose the guidelines sentence and be

done with it, without wading into the vague and prolix statutory factors.” Cunningham,

429 F.3d at 679. Rather, the record here demonstrates that the District Court “wad[ed]

into” the pool of considerations urged upon it by the parties and exercised its discretion

by balancing those considerations and determining an appropriate sentence. See id. at

676 (“[I]t is enough that the record confirms that the judge has given meaningful

consideration to the section 3553(a) factors, and the record supplies us with that assurance

here.” (emphasis and internal quotation marks omitted)); see also Cooper, 437 F.3d at

329 (requiring that “the record makes clear the court took the [relevant] factors into

account in sentencing”). Estep has not met his burden of proving that the sentence

imposed by the District Court was unreasonable.

                                       *   *   *    *   *

         For the reasons set forth above, we affirm the sentence imposed by the District

Court.




                                               10
