                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-25-2009

USA v. Maximus Prophet
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2918




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Recommended Citation
"USA v. Maximus Prophet" (2009). 2009 Decisions. Paper 1132.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1132


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                                                            NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                                 ___________

                                 No. 08-2918
                                 ___________


                       UNITED STATES OF AMERICA

                                       v.

                            MAXIMUS PROPHET,
                      also known as MARK L. FERRARI

                                      MAXIMUS PROPHET,
                                      Appellant
                                 ___________

                 On Appeal from the United States District Court
                    for the Western District of Pennsylvania
                    (D.C. Criminal No. 3-07-cr-00025-001)
                 District Judge: The Honorable Kim R. Gibson
                                 ___________

                   Submitted Under Third Circuit LAR 34.1(a)
                                May 21, 2009

         BEFORE: FUENTES, JORDAN, and NYGAARD, Circuit Judges.

                             (Filed: June 25, 2009)

                                 ___________

                          OPINION OF THE COURT
                               ___________

NYGAARD, Circuit Judge.
      Appellant, Maximus Prophet, pleaded guilty to twelve counts of child

pornography. Count One charged him with possession of visual depictions of minors

engaged in sexually explicit conduct, a violation of 18 U.S.C. § 2252(a)(4)(B)(A), and

Counts Two through Twelve charged him with receipt of such visual depictions in

violation of 18 U.S.C. § 2252(a)(2). Prophet was sentenced to 120 months at Count One

and 168 months imprisonment at Counts Two through Twelve, all terms running

concurrently. Prophet appeals, challenging the reasonableness of his sentence.

                                            I.

      We review for an abuse of discretion. This is a highly deferential standard and we

may not reverse the District Court merely because we disagree with a sentence. If a

sentence falls within a broad range of possible sentences that can be considered

reasonable in light of the § 3553(a) factors, we must affirm. When we review a district

court’s sentence for “reasonableness,” our touchstone is whether the record as a whole

reflects rational and meaningful consideration of the factors enumerated in 18 U.S.C. §

3553(a).

      Here, the District Court adequately considered the factors and its colloquy was

reasonable. The District Court viewed Prophet’s participation in a peer-to-peer network

as a form of distribution. The District Court rejected the Government’s call for an upward

departure and instead found that the within-Guidelines sentence was appropriate so as to

reflect the seriousness of the crimes — which, we must note, involved not only hundreds



                                            2
of images of child pornography, but also videos of sado-masochistic sexual acts involving

young children.

       As a matter of law, the District Judge was obligated to consider the Guidelines

range, which he did, and to consider whether that range was appropriate to this particular

defendant, which he also did. Inasmuch as the sentence was within the Guidelines range,

we would be hard-pressed to hold that it was not within a range of reasonable sentences.

Further, the District Court found that Prophet’s medical condition did not render him

infirm or warrant a downward departure or variance.

                                            II.

       Prophet also argues that the District Court improperly relied on the child

pornography Guidelines, which he maintains were rendered unreliable by the Supreme

Court’s recent opinion in Kimbrough v. United States, 128 S.Ct. 558 (2007). Prophet

argues that the child pornography Guidelines are based on statutory mandatory minimums

and not empirical support or national experience.

       There is increasing debate whether the child pornography Guidelines, especially

Guideline 2G2.2, provide a sound basis for sentencing. The argument is that because

these Guidelines — like those at issue in Kimbrough — were not based on the Sentencing

Commission’s nationwide empirical study of criminal sentencing. It has been noted that

“[m]uch like policymaking in the area of drug trafficking, Congress has used a mix of

mandatory minimum penalty increases and directives to the Commission to change



                                             3
sentencing policy for sex offenses.” United States v. Huffstatler, 561 F.3d 694, 696-97

(7th Cir. 2009) (citing 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), available at http:// www. ussc. gov/ 15_

year/ 15_ year_ study_ full. pdf.). Nevertheless, we need not reach this issue here.

       In Kimbrough, the Supreme Court held that, because the crack-cocaine guidelines

were predominantly based on statutory minimum sentences and not empirical data or

national experience, “it would not be an abuse of discretion for a district court to

conclude when sentencing a particular defendant that the crack/powder disparity yields a

sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes, even in a mine-run

case.” Kimbrough, 128 S.Ct. at 575. However, even if it were true that district courts,

based on the reasoning of Kimbrough, may impose below-guideline sentences for child

pornography offenses solely based upon policy disagreements with those guidelines, it

does not follow that they must do so. As the Seventh Circuit reasoned when confronted

with a similar argument:

       Despite Kimbrough, the crack guidelines, to which [defendant] so
       energetically analogizes those for child-exploitation, remain valid. And
       judges are not required to disagree with the crack guidelines; a
       within-guidelines sentence may be reasonable. The child-exploitation
       guidelines are no different: while district courts perhaps have the freedom
       to sentence below the child-pornography guidelines based on disagreement
       with the guidelines, they are certainly not required to do so.




                                              4
Huffstatler, 561 F.3d at 697-98. We decline Prophet’s invitation to invalidate an entire

section of the Sentencing Guidelines. Prophet has offered no evidence suggesting that his

below-guidelines sentence was arbitrary or based upon impermissible factors, or that the

district judge failed to consider pertinent § 3553(a) factors or gave an unreasonable

amount of weight to any pertinent factor. As we have stated, a disagreement with the

District Court’s sentence or the policy behind it does not render its sentence unreasonable.

Finally, the District Court here did not base its sentences on policy disagreements with

child pornography guidelines. Therefore, we hold that Prophet’s sentence is substantively

reasonable and will affirm the sentencing order.




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