                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 09-4477
                                    _____________

                           UNITED STATES OF AMERICA

                                           v.

                                STEVEN C. TANZOLA,

                                               Appellant.
                                   _______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                         (D.C. Crim. Action No. 08-00724)
                    District Judge: Honorable Berle M. Schiller
                                 _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 16, 2010
                                 _______________

     Before: SLOVITER, GREENAWAY, JR., and GREENBERG, Circuit Judges

                            (Opinion Filed: March 7, 2011)
                                  _______________

                                      OPINION
                                  ________________

GREENAWAY, JR., Circuit Judge

      Appellant Steven C. Tanzola (“Tanzola”) appeals his judgment of conviction,

entered on September 8, 2009, for possession of child pornography, in violation of 18

U.S.C. § 2252(a)(4)(B.) Following his conviction, Tanzola was sentenced to 78 months
of imprisonment, followed by five years of supervised release, a $100 special assessment,

and a $2,000 fine. Tanzola contends that his sentence was both procedurally and

substantively unreasonable. For the following reasons, we will affirm the District Court‟s

Judgment.

                                  I.   BACKGROUND

       We write primarily for the benefit of the parties. We shall recount only the

essential facts. On three separate dates, November 20, 2004, March 25, 2006, and May

11, 2006, Tanzola purchased subscriptions to a website identifying itself as “illegal CP.”

On January 14, 2008, a search warrant was executed at Tanzola‟s residence. A laptop,

computer tower, external hard drive, and several recordable DVDs were seized. The

computer tower and the external hard drive contained images of child pornography, as

well as search terms and phrases indicating that Tanzola had conducted searches for child

pornography. Five video clips and hundreds of images of child pornography were

recovered from four recordable DVDs, and 322 images of explicit child pornography,

including eight videos of sexually explicit conduct by minors were recovered from the

external media.

       On December 4, 2008, Tanzola was indicted in the Eastern District of

Pennsylvania on one count of possession of child pornography, in violation of 18 U.S.C.

§ 2252(a)(4)(B). Tanzola filed a motion to suppress the evidence recovered in the search,

but the motion was denied. On April 6, 2009, Tanzola pled guilty to one count of

possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B).

                                             2
       In its pre-sentence investigation report (“PSR”), the Probation Office determined

that the base offense level under U.S.S.G. § 2G2.2(a)(1) was 18. Tanzola was subject to

several enhancements, according to the calculations in the PSR: (1) a two-level

enhancement because some of the images depicted prepubescent minors; (2) a four-level

enhancement because some of the material portrayed sadistic or masochistic conduct or

other depictions of violence; (3) a two-level enhancement because a computer was used

to commit the offense; and (4) a five-level enhancement because the defendant possessed

600 or more images. (PSR ¶¶ 22-26.) Tanzola earned a three-level reduction for

acceptance of responsibility. His total offense level amounted to 28. Tanzola had a

criminal history category of I. His Guidelines range was 78 to 97 months.

       On April 14, 2009, Tanzola was evaluated and tested by a forensic psychologist,

Dr. Timothy P. Foley. Dr. Foley filed a report which was provided to the Court at

sentencing. Dr. Foley concluded that Tanzola shows “no indications of pedophilic

interests” and that “he presents a low risk of sexual misconduct.” (J. App. Vol. II 122, J.

App. Vol. III 170-71.) Dr. Foley opined that Tanzola, “having no history of contact

offenses or other antisocial behaviors, appears to be amenable to outpatient treatment and

supervision.” (J. App. Vol. III 170-71.) Dr. Foley did agree with the government that the

fact that Tanzola had made multiple purchases of subscriptions to child pornography sites

showed an interest in child pornography.




                                             3
        The government argued that Dr. Foley‟s opinion that there was a low risk that

Tanzola would commit a contact offense did not address Tanzola‟s risk of recidivism for

the crime of possession of child pornography.1

        At sentencing, Tanzola requested a below-Guidelines sentence based on Dr.

Foley‟s report and testimony, and on several additional grounds.2 Prior to the sentencing

hearing, the government submitted sealed victim impact statements from one of the

children depicted in the images and from that child‟s parents.

         On September 3, 2009, after ruling on Tanzola‟s factual objections and hearing

from Dr. Foley regarding his evaluation of Tanzola, the District Court adopted the factual

information contained in the PSR and sentenced Tanzola to 78 months of imprisonment,

followed by five years of supervised release and a special assessment of $100. Tanzola

timely appeals.

                II.    JURISDICTION AND STANDARD OF REVIEW

        The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

1
    Tanzola was never charged with a contact sexual offense.
2
  The other grounds are: (1) Tanzola‟s age and the low likelihood of recidivism as
indicated by his age; (2) the nearly two year time span since his last known purchase of
child pornography, further indicating his low risk of recidivism; (3) his history of clinical
depression and anxiety, which contributed to his commission of the offense, and for
which he is now receiving treatment; (4) his early and consistent acceptance of
responsibility; (5) his various physical ailments, which will make prison especially severe
for him; (6) the substantial civil consequences he will experience as a result of his
conviction, including registration with the state police under the Sex Offender
Notification Act; and (7) the undue severity of the child pornography Guidelines.

                                              4
       We review the District Court‟s sentencing decision under an abuse of discretion

standard. Rita v. United States, 551 U.S. 338, 364 (2007) (citing United States v. Booker,

543 U.S. 220, 261 (2005)).

                                III.   LEGAL STANDARD

       District courts must follow a three-step process in determining an appropriate

sentence. United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). Courts must: (1)

correctly calculate a defendant‟s sentence under the U.S. Sentencing Guidelines; (2)

allow the parties to argue their positions relative to what they believe is an appropriate

sentence; and (3) consider those arguments in light of the § 3553(a) factors. Id. The

sentencing courts are statutorily required to state their reasons for imposing a sentence,

although a comprehensive, detailed opinion is not required. Id. The court must provide

an explanation that is sufficient to satisfy the appellate court that the district court

considered the parties‟ argument, and had a reasoned basis for exercising its own

decision-making authority. Id. District courts have discretion when sentencing and

appellate review is limited to determining whether the sentence imposed is reasonable.

       “The touchstone of ‘reasonableness‟ is whether the record as a whole reflects

rational and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).”

United States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc); see also United States

v. Levinson, 543 F.3d 190, 195 (3d Cir. Del. 2008) (“Our responsibility on appellate

review of a criminal sentence is limited yet important: we are to ensure that a

substantively reasonable sentence has been imposed in a procedurally fair way.”)

                                                5
       While reviewing courts may presume that a sentence within the advisory

Guidelines is reasonable, it may not presume that a non-Guidelines sentence is

unreasonable. Rita, 551 U.S. at 354-55. Appellate judges must still always defer to the

sentencing judge=s individualized sentencing determination. Id. at 351. “It is not the role

of the appellate court to substitute its judgment for that of the sentencing court as to the

appropriateness of a particular sentence,” except to the extent specifically directed by

statute. Williams v. United States, 503 U.S. 193, 205 (1992) (quoting Solem v. Helm,

463 U.S. 277, 290 (1983)).

       An appellate court‟s reasonableness review of a sentence has both procedural and

substantive components. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009). The

procedural component requires the appellate court to ensure that the district court

committed no significant procedural error, including failing to calculate (or improperly

calculate) the U.S. Sentencing Guidelines range, treating the Guidelines as mandatory,

failing to consider the 18 U.S.C. § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen sentence, including an

explanation for any deviation from the guidelines range. Id. A district court‟s “failure to

consider § 3553(a) factors” can create a procedurally unreasonable sentence. Gall v.

United States, 552 U.S. 38, 51 (2007).

       The substantive component requires the appellate court to take into account the

totality of the circumstances. United States v. Lychock, 578 F.3d 214, 218 (3d Cir.

2009). Although the appellate court considers the extent of any variance from the

                                              6
advisory Guidelines range, it must also give due deference to the district court‟s decision

that the § 3553(a) factors, on a whole, justify the extent of the variance. Id. The

substantive reasonableness of each sentence must be evaluated on its own terms, based on

the reasons that the district court provided, in light of the particular facts and

circumstances of that case. Tomko, 562 F.3d at 573. In looking at the totality of the

circumstances, we determine whether a reasonable court would have applied the same

sentence as the district court in this case.

                                      IV.      ANALYSIS

       Tanzola contends that the District Court‟s sentence of 78 months was procedurally

unreasonable, because it failed to meaningfully address his non-frivolous arguments for a

below-Guidelines sentence. He also contends that the sentence was substantively

unreasonable, given the nature and circumstances of his child pornography possession

offense, and several other factors.




                                                7
       Procedural Unreasonableness

       We review the District Court‟s analysis of Tanzola‟s case for procedural

unreasonableness, and find that the District Court complied with the factors elucidated in

Tomko. 562 F.3d at 567. Tanzola argues that the district court failed to meaningfully

address any of the variance arguments that defense counsel made, but instead provided a

rote recitation of the § 3553(a) sentencing factors. We disagree. First, the District Court

did consider and reject all of Tanzola‟s arguments for leniency even though it did not

address each argument individually. The District Court thoroughly considered the nature

and characteristics of Tanzola‟s actions, as evidenced by its extensive questioning of Dr.

Foley regarding his examination of Tanzola. (J. App. Vol. II 135-37). In fact, in an

attempt to better understand Tanzola‟s actions, the District Court even went so far as to

ask Dr. Foley “why does someone do this,” referring to Tanzola‟s actions. (Id. at 135).

The District Court also had a lengthy colloquy with Tanzola‟s counsel, acknowledging

that it had read Tanzola‟s sentencing memorandum, and pointing out that the number of

photographs (and videos) was not insignificant. The Court also noted its reliance on

victim impact statements, reinforcing the fact that this was not a victimless crime.

       The Court questioned Tanzola during his allocution at the sentencing hearing, and

specifically stated that “the sentence also will reflect the testimony that occurred at this

sentencing hearing from the doctor, and from your [Tanzola‟s] comments and answers to

my questions.” (J. App. Vol. II 157). The Court also noted that Tanzola met with Dr.

Foley twice, for a total of eight hours. The Court stipulated that Tanzola participated in a

                                               8
mental health program for evaluation and/or treatment as approved by the Court, after

receiving a recommendation by the U.S. Probation Office, and directed Tanzola to remain

in treatment until he is satisfactorily discharged with the approval of the Court. (Id. at

159). The Court also recommended that Tanzola be placed in a medical facility that could

provide him with appropriate medical care. (Id. at 161).

       The District Court recognized and discussed the §3553(a) factors for consideration

in sentencing Tanzola, stating, “In reaching the sentence, I have considered all the factors

enumerated in Title 18 § 3553(a) of the United States Code.” (Id. at 157).

       Tanzola relies on United States v. Olhovsky, 562 F.3d 530 (3d Cir. 2009) to

support his contention of procedural unreasonableness. However, Olhovsky provides

Tanzola with no solace. The facts of Tanzola‟s case differ from those of Olhovsky, and

we find that Tanzola‟s dependence on Olhovsky regarding its claim of procedural

unreasonableness is, at best, misplaced. Tanzola is a 60 year-old male, with no prior

criminal record. Following Tanzola‟s arrest, he was evaluated and tested by Dr. Timothy

P. Foley, a forensic psychologist, for six and a half hours on April 14, 2009 and an

additional hour and a half on July 23, 2009.

       In Olhovsky, an 18 year old male was convicted of possessing child pornography,

in violation of 18 U.S.C. § 2252A (a)(4)(B), and sentenced to six years of imprisonment.

Prior to sentencing, Olhovsky participated in mental health counseling arranged by

Probation and Pretrial Services. During the almost two years that passed before Olhovsky

was sentenced, he continued in counseling and therapy, including regular meetings with

                                               9
Dr. Howard Silverman, a psychologist specializing in the treatment of sex offenders. At

sentencing, Olhovsky argued that the sentence imposed was unreasonable and that the

sentencing court erred as a matter of law in refusing to allow his treating psychologist to

testify at the sentencing hearing.

       In Olhovsky, we held that the sentence handed down by the district court was

procedurally unreasonable, vacated the sentencing decision and remanded the case with

instructions for the district court to impose a reasonable sentence based upon all of the 18

U.S.C. § 3553(a) factors. Id. We found that the district court based its sentence

“exclusively on the nature of the offense” and failed to consider “the history and

characteristics of the offender.” Id. at 549. We have held that “the record must show a

true, considered exercise of discretion on the part of a district court, including a

recognition of, and response to, the parties‟ non-frivolous arguments.” Id. at 546.

(internal citations omitted) We held that it was not apparent whether the court actually

considered the lengthy, very specific and highly positive reports of any of the three

defense experts. Id. at 547. “A rote statement of the §3553(a) factors should not suffice

if at sentencing either the defendant or the prosecution properly raises „a ground of

recognized legal merit (provided it has a factual basis)‟ and the court fails to address it.”

Id.

       The Olhovsky court appeared to focus instead on incapacitation, deterrence and

punishment, “to the exclusion of other sentencing factors,” including the individual

offender himself. Id. The sentence imposed was based on the district court‟s incorrect

                                              10
interpretation of the facts. As we have stated, “there was clearly nothing frivolous about

defense counsel‟s argument that Olhovsky was not a typical offender, nor counsel‟s

suggestion that his crime did not fall within the minerun of cases the Guidelines are

intended to address.” Id. at 552.

       Tanzola also contends that the District Court did not address his claim that the

child pornography guidelines are not based on empirical data and thus are unduly severe.3

In its November 5, 2010 28(j) letter to this Court, the government directed our attention to

U.S. v. Grober, 624 F.3d 592 (3d Cir. 2010), where we addressed U.S.S.G. § 2G2.2,

concerning child pornography offenses. (Appellee‟s 28(j) letter.) Grober presented the

issue of “whether the district court committed numerous procedural errors when it

categorically rejected § 2G.2.2 without adequately addressing the government‟s well-

supported arguments about the rationales of Congress and the Sentencing Commission.”

Id. at 20. We affirmed the district court‟s sentence of 60 months, holding that it was not

an abuse of discretion for the district court not to apply the Guidelines range

recommended by § 2G2.2, and emphasized that we do not hold that § 2G2.2 would

“always recommend an unreasonable sentence, and district courts had to continue to

consider the applicable Guidelines range.” Id. at 45. In Grober, we found that the district

court provided a sufficiently compelling justification for not applying the sentencing

range recommended by § 2G2.2.


3
  The government conceded that the District Court did not expressly address this
particular claim. (Appellee‟s Br. at 24).

                                             11
       In Tanzola‟s November 8, 2010 28(j) response letter, he argued that, under Grober,

“this case should be remanded for resentencing given the district court‟s undisputed

failure to respond to Mr. Tanzola‟s argument for a downward variance on the basis of the

undue severity of U.S.S.G. § 2G2.2.” We disagree.

       We have held that a district court is not required to engage in “independent

analysis” of the empirical justifications and deliberative undertakings that led to a

particular Guideline. United States v. Lopez-Reyes, 589 F.3d 667, 671 (3d Cir. 2009).

We find that, similar to the actions of the District Court in Grober, the District Court here

addressed the § 2G2.2 sentencing range. In Grober, the District Court explained why it

found § 2G2.2 flawed, why it declined to apply the Guidelines range recommended by §

2G2.2, and why it “varied from the recommended sentencing range to the ultimate

sentence it imposed.” We found the court‟s explanation “sufficiently compelling and

well-grounded in the § 3553(a) factors, to justify its decision.” 624 F.3d at 43-44.

       Similarly, the District Court in Tanzola‟s case, while not going into a detailed

explanation regarding § 2G2.2, stated “I have consulted the sentencing guidelines and the

specific sentencing range that those guidelines recommend . . .” (J. App. Vol. II 157).

The District Court also considered the §3553(a) factors, and discussed them to this

Court‟s satisfaction. (Id.) We have not stated that a district court must explain in great

detail its reasons for rejecting the sentencing Guidelines range under § 2G2.2; however,

we have stated that “if a district court does not in fact have a policy disagreement with §

2G2.2, it is not obligated to vary on this basis.” Gunter, 462 F.3d at 249. Therefore, we

                                             12
hold that the District Court did not commit procedural error, as argued by Tanzola,

because it did comment on the Guidelines range under § 2G2.2. We find that, as

indicated by the record, the District Court did address Tanzola‟s arguments for a

downward variance; thus, the sentence imposed was not procedurally unreasonable.

Substantive Unreasonableness

       Next, Tanzola argues that the sentence of 78 months of imprisonment was

substantively unreasonable. Specifically, he argues that the District Court did not

“meaningfully” address his arguments, but merely “recited some of the § 3553(a) factors,

said that some of counsel‟s arguments had been considered and then declared a sentence.”

(Appellant‟s Br. at 16). Tanzola requests that this Court remand so the District Court can

address Tanzola‟s grounds for a variance. (Id.) Tanzola also argues that the child

pornography Guidelines are eccentric and can easily generate unreasonable results.

       This argument is similar to the § 2G2.2 sentencing range argument discussed

above. As such, we decline to address the issue of the severity of the child pornography

Guidelines in general, and instead focus on the totality of the circumstances. In addition,

the “possible eccentricity” of the Guidelines, as Tanzola quips, is not relevant to our

determination of substantive reasonableness.

       Tanzola specifically relies on this Court‟s holding in Olhovsky, as he did in

arguing procedural unreasonableness; i.e., did the District Court take into account factors

he listed in his procedural unreasonableness argument. The totality of the circumstances



                                             13
analysis applied in the context of substantive unreasonableness leads us to conclude that

the sentence was sound.

       First, as noted earlier, the District Court considered all of Tanzola‟s arguments.

We have held that sentencing courts need not discuss each of the § 3553(a) factors “if the

record makes clear the court took the factors into account in sentencing.” United States v.

Cooper, 437 F.3d 324, 329 (3d Cir. 2006). Here, the District Court stated that it had

considered all of the § 3553(a) factors, including the sentencing guidelines and the

specific sentencing range recommended. Second, the Court further stated that the

sentence imposed “will reflect the seriousness of [Tanzola‟s] offense, it will provide

adequate deterrence to criminal conduct.” (Id.) Finally, the District Court stated that “the

sentence also will reflect the testimony that occurred at this sentencing hearing from the

doctor, and from [Tanzola‟s] comments, and answers to [the judge‟s] questions.” (Id.)

Therefore, given that the District Court did examine the totality of the circumstances in

sentencing Tanzola, the sentence was substantively reasonable.

       Although Tanzola persists in comparing the facts of his case to those in Olhovsky,

they are vastly different. The only fact these two cases seem to have in common is that

both defendants were charged with possession of child pornography. Olhovsky was a

barely 18 year old dysfunctional male. After he was arrested, he was placed under the

care of a treating psychologist for more than two years - - before sentencing. Tanzola is a

60 year old male who began his involvement with child pornography well into his



                                             14
adulthood. His relationship with his psychologist was short-lived and clearly preparatory

for sentencing - - 8 hours.

       Further, the mental health issues and emotional concerns as between Olhovsky and

Tanzola are very different. Olhovsky was described as someone with the maturity level

of a 14 or 15 year old. Tanzola is an adult male, married with a family and with the

ability to have gainful employment, who exhibited no deficit in maturity. In Olhovsky,

the Court found that the district court erred by failing to consider the history and

characteristics of the offender, and by basing its sentence exclusively on the nature of the

offense. In the present case, the District Court considered Tanzola‟s characteristics, the

nature of the offense, and the remaining § 3553(a) factors in arriving at an appropriate

sentence. Olhovsky does not carry the day for Tanzola.




                                             15
                                  V.   CONCLUSION

        Based on our review, the District Court‟s sentence of Tanzola to 78 months of

imprisonment was both procedurally and substantively reasonable, given the facts and the

totality of the circumstances, as indicated in the record. For the foregoing reasons, we

will affirm the District Court‟s order and judgment of conviction entered on September 8,

2009.




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