                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                       No. 15-3590


                           UNITED STATES OF AMERICA

                                           v.

                                  CHRISTINE YODER,

                                                     Appellant


                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                         D. C. Criminal No. 2-14-cr-00587-001
                      District Judge: Honorable Petrese B. Tucker
                                  ________________

                               Argued on October 7, 2016

               Before: SHWARTZ, COWEN and ROTH, Circuit Judges

                             (Opinion filed: March 6, 2017)


Robert Epstein, Esq. (ARGUED)
Federal Community Defender Office
for the Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106

                            Counsel for Appellant
Louis D. Lappen, Esq. (ARGUED)
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106

                            Counsel for Appellee



                                         OPINION*



ROTH, Circuit Judge

       Christine Yoder entered a guilty plea on two counts of producing child

pornography and two counts of distributing child pornography. She was sentenced to

twenty-five years’ imprisonment followed by ten years of supervised release and required

to pay $400 in a special assessment. On appeal, Yoder challenges the District Court’s

sentence as procedurally and substantively unreasonable. We will affirm.

I.     Background

       Christine Yoder is thirty-two years old and suffers from severe mental disabilities

and mental illness. She is estimated to have the intellectual level of approximately a

nine-year-old child and has been diagnosed with, among other things, impulse control

disorder related to post-traumatic stress disorder in part due to considerable abuse that

she has endured at the hands of several different men starting when she was two years

old. She has four children and, until her arrest, lived in Philadelphia.

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

                                              2
       On May 21, 2014, Yoder communicated online with a confidential source for the

FBI. The communication was subsequently taken over by an undercover agent. During

this online conversation. Yoder sent sexually explicit pictures of her six-year-old

daughter and offered to fly her daughter to Detroit, Michigan, for sexual activity. She

said that she wanted to find her daughter a husband and that the daughter would be with

the man to whom she was communicating for the rest of his life. She provided enough

information for the man to purchase an airplane ticket for her daughter to travel to

Detroit.

       Two days later, on May 23, 2014, Yoder reiterated to the undercover agent that

she was “serious” about sending her daughter to him and sent him more sexually explicit

messages. Later that day, Yoder was arrested at her home. The arresting officers

recovered approximately forty images of child pornography, thirty-six of which depicted

Yoder’s six-year-old and the remainder of which depicted Yoder’s one-year-old

daughter.

       Yoder gave a statement to FBI agents, confessing to producing and distributing

child pornography. She said that she contacted men online to “see who was sick.” She

said that she did not intend to send her daughter away, but she also said that “the plan

was to let the man take her daughter for the summer and see what happened after that.”

       On October 30, 2014, a grand jury in the Eastern District of Philadelphia returned

a four-count indictment charging Yoder with two counts of employing a child to produce

images of the child engaging in sexually explicit conduct in violation of 18 U.S.C. §



                                             3
2251(a) and two counts of distributing material involving the sexual exploitation of

children in violation of 18 U.S.C. § 2252(a)(1).

       On March 9, 2015, Yoder entered a plea of guilty on all four counts.

Subsequently, she submitted a sentencing memo arguing for a downward departure and a

downward variance from the Sentencing Guidelines range on the basis of her personal

characteristics and history, which the prosecution opposed in its sentencing memo. On

October 20, 2015, the District Court held a sentencing hearing. At the hearing, the

defense called witnesses, including an expert, Dr. Faye Sultan, who testified regarding

Yoder’s psychological and intellectual state and her likelihood of reoffending. Yoder

herself spoke briefly. The District Court heard argument about the defense’s requests for

a departure and a variance from the Guidelines.

       After hearing testimony and argument, the judge said:

       Ms. Yoder, this Court has the responsibility of fashioning a sentence that
       takes into account not only the person that stands in front of me, but the
       crime that was committed. I think we have all agreed that this crime is the
       most serious crime. There is clearly the need for protection of your
       children and any other children that you might come in contact with. There
       is also the history, your history that was presented to the Court. The Court
       has to take that into consideration.

       And taking it into consideration, I will grant the variance. I think a modest
       variance. I will deny the downward departure, but in granting the variance,
       I still recognize that while you have had a very tragic history, you brought
       four little girls into this world, you're responsible for them, and you're
       responsible for the consequences of your actions in regards to them and
       anybody else, and that it is necessary, in recognition of the seriousness of
       the offense and the need to protect your children and others, that you
       receive a sentence that is a substantial sentence, although a little less than
       the Sentencing Guidelines, but more than what your attorney has
       recommended.


                                             4
       The judge then imposed sentence. Yoder did not object to the sentence at the

time, but she timely appealed her sentence on the grounds that it is procedurally and

substantively unreasonable.

II.    Discussion1

       Because Yoder did not timely object to the District Court’s procedure at

sentencing, we review the procedural reasonableness of the District Court’s sentence

under a standard of plain error.2 We review the substantive reasonableness of the District

Court’s sentence for abuse of discretion.3

A. Procedural Reasonableness

       When an appellant did not object to an error occurring before the district court, we

exercise plain error review. Under this standard, the Court considers whether: (1) there

was an error; (2) the error was “plain”; (3) the error affects substantial rights—ordinarily,

whether the error was prejudicial; and (4) the error “seriously affects the fairness,

integrity, or public reputation of judicial proceedings.”4

       In sentencing, a district court must follow a three-step process:

       First, a district court must calculate a defendant's Guidelines sentence . . ..
       Second, a district court must formally rule on the motions of both parties
       and state on the record whether they are granting a departure and how that
       departure affects the Guidelines calculation, and take into account our
       Circuit’s pre-Booker case law, which continues to have advisory force.
       Third, a district court is required to exercise its discretion by considering
       the relevant § 3553(a) factors . . . in setting the sentence it imposes

1
  The District Court had jurisdiction over this matter pursuant to 18 U.S.C. § 3231. We
have jurisdiction over this appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
2
  United States v. Flores-Mejia, 759 F.3d 253, 258 (3d Cir. 2014)
3
  Gall v. United States, 552 U.S. 38, 51 (2007).
4
  Flores-Mejia, 759 F.3d at 259.
                                              5
       regardless whether it varies from the sentence calculated under the
       Guidelines.5

       One goal of this process is to provide an adequate record for an appeals court to

verify that the district court considered the arguments of the parties. However, a court

need not address parties’ arguments or the sentencing factors at length; they need only be

given “meaningful consideration.”6

       Here, the District Court followed the appropriate steps and provided an adequate

record, so it did not commit plain error. The first step is to calculate the Sentencing

Guidelines range, and here the Sentencing Guidelines range was undisputed: both parties

acknowledged that it was thirty years to life. The second step is to rule on any motions

from the parties and state on the record whether any departure is granted. The District

Court denied defense counsel’s request for a departure. Yoder does not argue that the

District Court erred in either of these steps.

       The third step is for the court to exercise its discretion. In doing so, the court must

consider the § 3553(a) factors, which the District Court here did. The judge considered

“the crime that was committed,” which she described as “the most serious crime.”7 This

consideration relates to § 3553(a)(1), “the nature and circumstances of the offense,” as

well as § 3553(a)(2)(A), the need for the sentence “to reflect the seriousness of the

offense . . ..” She considered “the need for protection of your children and any children




5
  Id. at 256 (internal quotation marks, citations, and brackets omitted).
6
  Id.
7
  App. 166.
                                                 6
that you might come in contact with,”8 which relates to § 3553(a)(2)(C), the need for the

sentence “to protect the public from further crimes of the defendant . . ..” She considered

“the person that stands in front of me” and “[the defendant’s] history that was presented

to the Court,”9 which relates to § 3553(a)(1), “the history and characteristics of the

defendant . . ..” She explicitly balanced all these factors together and related them to the

sentence when she said, “[I]n granting the variance, I still recognize that while you have

had a very tragic history, . . . it is necessary, in recognition of the seriousness of the

offense and the need to protect your children and others, that you receive a sentence that

is a substantial sentence . . ..”10 Thus, the District Court considered the relevant

§ 3553(a) factors.

       Yoder argues on appeal that the District Court entirely failed to consider two

potentially meritorious arguments in relation to the sentence and therefore exercised its

discretion improperly. First, Yoder requested a variance to the statutory minimum of

fifteen years on the basis of her personal characteristics and history. 11 The judge

responded to Yoder’s arguments by noting that the sentence “t[ook] into account the

person that st[ood] in front of” the District Court, as well as referring to the defendant’s




8
  Id.
9
  Id.
10
   Id.
11
   See 18 U.S.C. 3553(a)(1).
                                               7
“very tragic history.”12 These statements, coupled with the fact that the judge did grant a

variance, suggest that the judge considered Yoder’s arguments for a variance. Thus, we

are not persuaded that the judge committed plain error by entirely failing to consider

Yoder’s personal characteristics and history.

       Second, Yoder argued that the Guidelines range for child pornography offenses is

unreasonably high because it was developed by congressional directive rather than by the

Sentencing Commission pursuant to its usual institutional role.13 This argument was

based on our holding in United States v. Grober that it would not be an abuse of

discretion for a district court to conclude that “a within-Guidelines sentence would not

meet the sentencing purposes set out in § 3553(a), even in a typical [child pornography]

case.”14 The District Court did not explicitly respond to this argument, and on appeal,

Yoder argues that this lack of response constitutes plain error requiring reversal. We

disagree. Yoder cited Grober in support of an argument for a downward variance, and

the District Court granted a downward variance. Thus, there was no reason for the

District Court to further address Grober.

       Although the judge’s comments were brief, the judge provided enough of a record

to show that she considered the parties’ relevant arguments. Consequently, the sentence

was not procedurally unreasonable.

12
   These individualized considerations distinguish this case from United States v.
Olhovsky, 562 F.3d 530 (3d Cir. 2009), on which Yoder relies heavily, because in
Olhovsky, the sentencing court omitted “any consideration for [the defendant’s]
subnormal social development” and amenability to treatment despite testimony regarding
these points. Id. at 550. The judge considered these points here, albeit briefly.
13
   See App. 47.
14
   624 F.3d 592, 608 (3d Cir. 2010).
                                             8
B. Substantive reasonableness

       A sentence may be reversed as substantively unreasonable if “no reasonable

sentencing court would have imposed the same sentence on that particular defendant for

the reasons the district court provided.”15 This is a high bar; only rarely will it be “clear

that no acceptable reasoning can justify a given sentence.”16 Generally, “[i]n reviewing

the reasonableness of a sentence outside the Guidelines range, appellate courts may . . .

take the degree of variance into account and consider the extent of a deviation from the

Guidelines . . ..”17 However, an appeals court may not apply a presumption of

unreasonableness to an outside-Guidelines sentence, require extraordinary circumstances

to justify an outside-Guidelines sentence, or use “the percentage of a departure as the

standard for determining the strength of the justifications required for a specific

sentence.”18 A below-Guidelines sentence is not likely to be substantively unreasonable

on the ground that it is too long.19

       Here, Yoder presented plausible arguments for a downward variance, including

that she was amenable to treatment and had diminished culpability due to her mental

disabilities and tragic history. After considering these arguments, the judge granted the

variance; it was simply smaller than Yoder felt was appropriate. None of Yoder’s unique


15
   United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc).
16
   United States v. Levinson, 543 F.3d 190, 195 (3d Cir. 2008).
17
   Gall v. United States, 552 U.S. 38, 47 (2007).
18
   Id.
19
   See United States v. Diaz-Pellegaud, 666 F.3d 492, 504 (8th Cir. 2012) (“Where a
district court has sentenced a defendant below the advisory guidelines range, it is nearly
inconceivable that the court abused its discretion.”) (quoting United States v. Moore, 581
F.3d 681, 684 (8th Cir. 2009)) (internal quotation marks and brackets omitted).
                                              9
circumstances obliged the District Court to grant the maximum variance permitted by

statute. The District Court was permitted to weigh Yoder’s likelihood of reoffending

against the potential harms if she did reoffend—which, as no one disputes, could be

extremely serious—and determine that a small variance, rather than the maximum

variance, was appropriate. The sentence was not substantively unreasonable.

III.   Conclusion

       For the foregoing reasons, we will affirm the judgment of the District Court.




                                            10
United States of America v. Yoder, No. 15-3590, dissenting.

COWEN, Circuit Judge.

       I must respectfully dissent. The District Court’s sentence was both procedurally

and substantively unreasonable. It committed plain procedural error because it did not

begin the sentencing process by calculating the applicable Guidelines range. The District

Court then failed to give “‘meaningful consideration’” to the statutory sentencing factors,

especially the characteristics of the defendant herself. (Maj. Op. at 6 (quoting United

States v. Flores-Mejia, 759 F.3d 253, 256 (3d Cir. 2014) (en banc)).) It likewise failed to

acknowledge and respond to Yoder’s request for a downward variance on the basis of

uncontested expert evidence “regarding Yoder’s psychological and intellectual state and

her likelihood of reoffending.” (Id. at 4.) I also conclude that the sentence was

substantively unreasonable because no reasonable sentencing court would have sentenced

this particular defendant to twenty-five years’ imprisonment for the reasons the District

Court provided.

       A sentencing court must begin by calculating a defendant’s Guidelines sentence.

See, e.g., Flores-Mejia, 759 F.3d at 256. The government acknowledges that the District

Court “did not explicitly state the [Guidelines] range.” (Appellee’s Brief at 29.) When

asked by the District Court if there were any additions or corrections to the PSR, defense

counsel indicated that there were none (and agreed to a minor correction offered by the

government). Yoder acknowledges that the correct Guidelines range (thirty years to life)

was set forth in the PSR. But we “value formality in sentencing to the extent that it

promotes the goals of procedural uniformity, meaningful review, and substantive
fairness.” United States v. Clark, 726 F.3d 496, 502 (3d Cir. 2013) (citing United States

v. Fumo, 655 F.3d 288, 318 (3d Cir. 2011); United States v. Ausburn, 502 F.3d 313, 328-

29 (3d Cir. 2007)). “Chief among our duties in fulfilling this ‘important role’ [of

appellate review] is ensuring that district courts follow proper sentencing procedures.”

United States v. Merced, 603 F.3d 203, 214 (3d Cir. 2010) (quoting United States v.

Tomko, 562 F.3d 558, 575 (3d Cir. 2009) (en banc)). At the very least, the District Court

should have begun at the first step of the sentencing process—the calculation of the

Guidelines range—instead of asking questions about the PSR only after it had already

purportedly completed the second and third steps by ruling on the departure motion and

considering the relevant statutory factors.

       In any event, the District Court clearly failed to consider in a meaningful fashion

the statutory factors, especially Yoder’s own personal characteristics, as well as Yoder’s

request for a variance based on her intellectual and mental disabilities, amenability to

treatment, and likelihood of reoffending. “To satisfy step three, the district court ‘must

acknowledge and respond to any properly presented sentencing argument which has

colorable legal merit and a factual basis.’” Mejia-Flores, 759 F.3d at 256 (quoting United

States v. Begin, 696 F.3d 405, 411 (3d Cir. 2012)).

       Yoder presented, through the report and testimony of a clinical psychologist,

extensive evidence regarding her serious intellectual and mental disabilities. As the

majority recognizes, she is a thirty-two-year-old woman who has the approximate

intellectual level of a nine-year-old child. She was hospitalized on two occasions on

                                              2
account of her mental problems and diagnosed with “Major Depressive Affective

Disorder, single episode, severe, with psychotic features; Dysthymic Disorder; and Post-

Traumatic Stress Disorder, delayed ‘type’ onset” (A55) as well as “Major Depression,

recurrent, severe” (A56.) After her arrest, the doctors at the Philadelphia Federal

Detention Center found that she suffered from “Unspecified Bipolar and Related

Disorder, Unspecified Anxiety Disorder, and Unspecified Intellectual Disability.” (A56.)

Concluding that Yoder is neither a pedophile nor a sexual predator, Dr. Sultan opined that

“[s]he’s a very infantile, very compulsive, needy person who is desperate for the attention

of men.” (A112.) According to Dr. Sultan, Yoder’s conduct was motivated by her desire

to attract the attention, and possibly the financial assistance, of men. The expert further

opined that Yoder (although she understood on a certain level that what was doing was

wrong) did not appreciate the serious harm she had inflicted on her children.

       In addition, the evidence presented to the District Court clearly indicated that

Yoder is amenable to treatment and her risk of reoffending is very low. According to Dr.

Sultan, “[t]here are specific [BOP] programs, cognitive behavioral programs, that are

shown to be quite effective over a period of time.” (A111-A112.) Yoder would also

benefit from a combination of an antipsychotic medication, an antidepressant, and

psychotherapy. Yoder had been placed on such medications following her arrest, and Dr.

Sultan observed her improvement over time. Yoder had expressed deep remorse and

sadness about the harm she caused her children, for whom “she expresses great love and

affection.” (A111.)

                                              3
       Asking for the statutory minimum sentence of fifteen years, Yoder’s counsel

insisted that this was an unusual case and asserted that her disabilities (and history of

abuse) “caus[ed] her to behave in the way that caused this crime to happen.” (A157.)

Counsel further noted “her success on consistent medication” as well as “the fact that

there are programs that exist to address just these issues.” (A160.) The government did

not present any expert evidence of its own to contest Dr. Sultan’s assessment. Although

Dr. Sultan was cross-examined at some length, she continued to insist that, with the

proper treatment regimen, “[Yoder’s] very unlikely to reoffend.” (A138.) In fact, the

government does not claim that these arguments about Yoder’s intellectual and mental

disabilities, amenability to treatment, and the likelihood of reoffending lacked either

colorable legal merit or a factual basis. As the majority puts it, “Yoder presented

plausible arguments for a downward variance, including that she was amenable to

treatment and had diminished culpability due to her mental disabilities and her tragic

history.” (Maj. Op. at 9.)

       Yet the District Court failed to acknowledge and respond to these disability and

recidivism arguments—and failed to consider the evidence regarding these

“characteristics of the defendant” under § 3553(a)(1). According to the majority, the

sentencing judge “responded to Yoder’s arguments by noting that the sentence ‘t[ook]

into account the person that st[ood] in front of’ the District Court, as well as referring to

the defendant’s ‘very tragic history.’” (Maj. Op. at 7-8 (footnote omitted).) “These

statements, coupled with the fact that the judge did grant a variance, suggest that the

                                              4
judge considered Yoder’s arguments for a variance.” (Id. at 8.) However, § 3553(a)(1)

refers to both the “history” as well as the “characteristics of the defendant.” See, e.g.,

TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is a ‘cardinal principle of statutory

construction’ that ‘a statute ought, upon the whole, to be so construed that, if it can be

prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.’”

(quoting Duncan v. Walker, 533 U.S. 167, 174 (2001))). Even if the District Court

adequately considered Yoder’s “history” of abuse, it did not meaningfully address the

issues regarding her intellectual and mental “characteristics.” The reference to having

taken into account the person standing in front of me appears to be nothing more than a

prefatory statement of a district court’s general obligations at sentencing. After all, the

District Court immediately qualified this statement by referring to “the crime that was

committed” (A166)). Given the extensive and uncontested evidence presented in this

case, I would expect, at the very least, a sentencing court to say something about the fact

that the person sentenced to twenty-five years’ imprisonment functions intellectually at

the level of a nine-year-old child—yet has a very low chance of committing future

offenses given her amenability to a treatment regimen, including a highly successful

prison program designed for individuals just like her. The District Court did not do so.

       According to the majority, the District Court’s “individualized considerations

distinguish this case from United States v. Olhovsky, 562 F.3d 530 (3d Cir. 2009), on

which Yoder relies heavily, because in Olhovsky, the sentencing court omitted ‘any

consideration for [the defendant’s] subnormal social development’ and amenability to

                                              5
treatment despite testimony regarding these points.” (Maj. Op. at 8 n.12 (quoting

Olhovsky, 562 F.3d at 550).) I cannot agree. In Olhovsky, we found that a child

pornography sentence was procedurally unreasonable because, among other things, “it is

not at all apparent that the court actually considered the lengthy, very specific and highly

positive reports of any of the three defense experts” and instead focused on

incapacitation, deterrence, and punishment to the exclusion of the other sentencing

factors. Olhovsky, 562 F.3d at 547. Given the treating psychologist’s belief that

Olhovsky’s lack of emotional maturity (i.e., he functioned at the emotional level of a

fourteen or fifteen-year-old juvenile) directly contributed to the offense, “the sentencing

court should have either explained the extent to which, if any, Olhovsky’s immaturity

factored into its sentence of six years imprisonment, or explained why it was irrelevant.”

Id. at 551. Likewise, “it is not at all apparent” that the District Court in this case

considered Dr. Sultan’s uncontested expert report and testimony, at least with respect to

Yoder’s disabilities, her amenability to treatment, or her likelihood of reoffending. In

fact, it did not expressly mention the expert evidence or even refer to Dr. Sultan herself.

Focusing on the seriousness of Yoder’s criminal conduct and the need to protect children,

the District Court “was so appalled by the offense that it lost sight of the offender.” Id. at

549. The sentencing court in Olhovsky stated that the defendant had not been responsive

to treatment, despite, inter alia, the opinion of the treating psychologist indicating the

opposite. Id. at 548-49. It also characterized Olhovsky as a “pedophile monster,” even

though the government’s own expert did not support such a drastic characterization. Id.

                                               6
at 547-48. In this case, the District Court indicated that Yoder posed a risk to her

children and others—without mentioning Dr. Sultan’s opinion that Yoder is neither a

pedophile nor a sexual predator and, on the contrary, is amenable to treatment and very

unlikely to reoffend. I also note that this Court found that the sentence was unreasonable

even though a variance had in fact been granted.1 Id. at 546-53.

       In addition, I find that the procedural errors committed here were obvious, affected

substantial rights (i.e., they were prejudicial), and affected the fairness, integrity, or

public reputation of judicial proceedings. See, e.g., Flores-Mejia, 759 F.3d at 259. It is

uncontested that the errors, if they had in fact occurred, were obvious. Insofar as these

errors implicate fundamental aspects of the sentencing process, they affected substantial

rights. Imposing a lengthy sentence—without following the requisite sentencing

procedures, without considering meritorious variance arguments, and without really


       1
          Accordingly, I believe that the District Court did not meaningfully consider the
need “to provide the defendant with needed educational or vocational training, medical
care, or other correctional treatment in the most effective manner,” § 3553(a)(2)(D), “the
need to avoid unwarranted sentence disparities among defendants with similar records
who have been found guilty of similar conduct,” § 3553(a)(6), and the need to “protect
the public from further crimes of the defendant,” § 3553(a)(2)(C). The District Court did
not mention Dr. Sultan’s testimony about the existence of “specific programs, cognitive
behavioral programs, that are shown to be quite effective over a period of time.” (A111-
A112.) In turn, “Yoder’s intellectual disability, her functioning at the level of a nine-
year-old child, makes her substantially different from most other child pornography
defendants.” (Appellant’s Brief at 24 (citation omitted).) Finally, the District Court told
Yoder there was a clear need “for protection of your children and any other children that
you might come in contact with” (A166)—without acknowledging and responding to the
uncontested expert evidence indicating that, while Yoder is neither a pedophile nor a
sexual predator, she is amendable to treatment and has a very low likelihood of
reoffending.
                                              7
addressing the statutory sentencing factors—likewise implicated the fairness, integrity,

and public reputation of this criminal proceeding. See, e.g., Clark, 726 F.3d at 502

(noting that we value formality in sentencing); Merced, 603 F.3d at 216 (“We require this

explanation [of the sentence], not because we distrust courts or seek to second guess

them, but because such an explanation is necessary and vital to us in performing

meaningful substantive reasonableness review.” (citing Tomko, 562 F.3d at 575; Cooper

v. United States, 437 F.3d 324, 329 (3d Cir. 2006))).

       “[I]f the district court’s sentence is procedurally sound, we will affirm it unless no

reasonable sentencing court would have imposed the same sentence on that particular

defendant for the reasons the district court provided.” Tomko, 562 F.3d at 568. While

our preferred course upon finding that the district court committed procedural error is to

remand the case without going any further, see, e.g., Merced, 603 F.3d at 214,

“‘procedural problems may lead to substantive problems, so that there are times when a

discussion of procedural error will necessarily raise questions about the substantive

reasonableness of a sentence,’” Olhovsky, 562 F.3d at 553 (quoting United States v.

Levinson, 543 F.3d 190, 193 (3d Cir. 2008)); see also, e.g., Merced, 603 F.3d at 215

(“These procedural requirements exist to ‘guide the [district court’s] exercise of

discretion,’ and failure to observe them may lead a court to impose a substantive

unreasonable sentence.” (quoting United States v. Goff, 501 F.3d 250, 256 (3d Cir.

2007))). Accordingly, the Olhovsky Court determined that, in light of the factual and



                                              8
procedural errors committed by the sentencing court, it was substantively unreasonable to

sentence Olhovsky to six years of imprisonment. Olhovsky, 562 F.3d at 553.

       I reach the same conclusion here. I do not, by any means, minimize the despicable

nature of Yoder’s criminal conduct. She took sexually explicit photographs of her own

young children (an eighteen-month-old daughter and a six-year-old daughter), sent

sexually explicit photographs of her six-year-old daughter to someone she believed to be

a pedophile, and then offered to send this child to this individual for sexual activity

(going so far as to provide him with the information needed to obtain an airline ticket).

In turn, Dr. Sultan herself acknowledged that Yoder horribly damaged her children (who

could continue the cycle of abuse by becoming sexual offenders themselves), and, as the

majority notes, the potential harm if she did reoffend “could be extremely serious.” (Maj.

Opinion at 10.) With that said, I do not believe that a reasonable sentencing court would

have sentenced a severely intellectually disabled and mentally ill abuse victim—who

(according to uncontested expert testimony) is neither a pedophile nor a sexual predator

but is amenable to treatment and presents a very low risk of reoffending—to serve

twenty-five years in prison. As I have already observed, the District Court, like its

counterpart in Olhovsky “was so appalled by the offense that it lost sight of the offender.”

Id. at 549. While a substantial term of imprisonment appears to be appropriate, a

sentence of twenty-five years—as opposed to a sentence closer to the statutory

minimum—was substantively unreasonable under the specific circumstances of this case.



                                              9
      Because I thereby determine that the sentence imposed by the District Court was

both procedurally and substantively unreasonable, I would vacate the sentence and

remand for resentencing.




                                          10
