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


8-30-2007

USA v. Goff
Precedential or Non-Precedential: Precedential

Docket No. 05-5524




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                                             PRECEDENTIAL

    IN THE UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                 _______________

                       No. 05-5524
                     _______________

             UNITED STATES OF AMERICA,

                              Appellant

                              v.

                      STEFAN GOFF

                     _______________

      On Appeal from the United States District Court
                for the District of New Jersey
                   (D.C. No. 05-cr-00541)
       District Judge: Honorable Anne E. Thompson
                      _______________

                  Argued March 27, 2007

  Before: FISHER, JORDAN and ROTH, Circuit Judges

                   (Filed August 30, 2007)
                      _______________
Christopher J. Christie
George S. Leone
Sabrina G. Comizzoli [ARGUED]
Office of United States Attorney
970 Broad Street - Rm. 700
Newark, NJ 07102
   Counsel for Appellant

Jerome A. Ballarotto [ARGUED]
143 White Horse Avenue
Trenton, NJ 08610
   Counsel for Appellee

                     _______________

                OPINION OF THE COURT
                    _______________

JORDAN, Circuit Judge.

       The government appeals a sentence of four months
imprisonment, three years of supervised release, and a
$10,000 fine imposed on the defendant, Stefan Goff, for
possessing hundreds of electronic images of child
pornography. Because we agree that the District Court’s
sentence was not reasonable in light of the circumstances of
this case, the advisory Sentencing Guidelines, and the
remaining factors set forth in 18 U.S.C. § 3553(a), we will
vacate and remand for resentencing.




                              2
                                I.

       The facts are as straightforward as they are sad. For
more than thirty years, Stefan Goff was employed at a private
elementary school in Mercer County, New Jersey. Over time,
he became a trusted and influential member of the school
community. He was the president of his college alumni
association and volunteered his time for a number of worthy
charitable causes. He was, to all appearances, a respectable,
middle-aged man leading a decent, law abiding life. But in
Goff’s life there was a terrible divergence between
appearance and reality, because he was also a frequent
customer of a child pornography internet site.

        On July 12, 2004, agents from the Child Exploitation
Group of the United States Bureau of Immigration and
Customs Enforcement, as part of a wider investigation into an
international child pornography enterprise, searched Goff’s
home and seized two computer hard drives. One of the hard
drives contained seven images of child pornography. The
other, in a “deleted items” file, contained hundreds of such
images.1 Goff was subsequently arrested and charged with


1
  The defense argued at sentencing that Goff only possessed seven
images, since the images in the “deleted items” file were in a
virtual garbage can. However, both sides agreed at the sentencing
hearing that the number of images in the deleted items file was in
excess of 600, although the defense noted that there was no way to
tell how many of those images were duplicates. According to the
government, further analysis of the images undertaken after
sentencing revealed that many of those images were duplicates and

                                3
possession of child pornography, pursuant to 18 U.S.C. §
2252A(a)(5)(B).2 Several months later, he pleaded guilty to a
one count information charging him with knowing and willful
possession of at least three images of child pornography.

       While not clear from the sentencing colloquy, the
District Court apparently accepted the Sentencing Guidelines
calculations set forth in the presentence report. Because Goff
had no previous criminal record, the “Criminal History” axis
of his Guidelines calculation was Category I. The base
offense level was 15, which was increased by two levels
because the pornographic images involved prepubuscent
minors or minors who had not attained the age of 12. See
U.S.S.G. § 2G2.4(a) and (b)(1).3 The level was increased
another two, pursuant to § 2G2.4(b)(3), because the offense
involved the use of a computer. Finally, the presentence
officer recommended a five-level increase because the offense


that Goff actually possessed 360 different pornographic images of
children. As we discuss later, see infra at n.9, the differential has
sentencing consequences.
2
  Sections 2252A(a)(5)(B) and (b)(2) provides, in relevant part,
that “[a]ny person who ... knowingly possesses any ... computer
disk ... that contains an image of child pornography that has been
... transported in interstate or foreign commerce by any means,
including by computer ... shall be fined under this title or
imprisoned not more than 10 years, or both ... .”
3
 § 2G2.4 was deleted in the November 1, 2004 version of the
Sentencing Guidelines. Its provisions, however, were consolidated
with the provisions of § 2G2.2.

                                  4
involved 600 or more images. U.S.S.G. § 2G2.4(b)(5)(D).
After crediting Goff with a three-level reduction for
acceptance of responsibility, the total offense level was 21.
Consequently, the applicable Guidelines range was 37 to 46
months.4

        At sentencing, defense counsel began with two
arguments for a lesser sentence than that called for by the
Guidelines. First he argued that the Guidelines are now
advisory only and that the District Court should not follow the
Guidelines because they called for a sentence substantially in
excess of that warranted by the offense. More specifically, he
asserted that the Guidelines’ focus on the number of
pornographic images possessed by a defendant ended up
dictating a higher than warranted sentence because Goff had
only a few images readily accessible and the rest were all
images that he had viewed in the past and tried to delete.
“The intent,” said counsel, was to “utilize a small number of
images ... and then be rid of them.” Counsel contended that,
in light of Goff’s intent, the Guidelines sentence was too
severe and ought not be imposed.

         The second argument was essentially a spin on the
first, as defense counsel admitted. Using the same argument
about the number of images wrongly driving the sentencing
range, counsel asserted that, even within the framework of the
Guidelines, the court should decline to give effect to the five-



4
 The Guideline Manual used for these calculations was the
November 1, 2003 edition.

                               5
level enhancement called for by Goff’s possession of more
than 600 images of child pornography.




                             6
        The defense argument then turned to a heavy emphasis
on Goff’s otherwise law-abiding and exemplary life, his
strong support within the community, and the impact the
prosecution had already had on his life. Counsel repeatedly
implied that Goff had committed a victimless crime, saying,
for example, that the crime was committed “by Mr. Goff all
by himself, in his room, in his house”, that a psychiatrist had
“found that Mr. Goff was no danger to the community, ... not
a pedophile”, and that “if the anonymous interaction with a
far away internet wasn’t possible, this may never have
happened”. Goff himself emphasized in a letter to the District
Court that his “viewing [of the pornography] was a solitary
activity confined to [his] home[,]” and that “no one else was
involved at any time.”

       These arguments apparently resonated with the District
Court. Despite government counsel’s arguments that the five-
level enhancement was appropriate, and that “a sentence at
the bottom of the guideline range, which ... would be 37
months, ... would be appropriate[,]”5 the court sentenced Goff




5
  The prosecutor went on to say that a “generous” view of the
Guidelines and the case would yield a minimum sentence of 21
months. JA at 71. The reasoning behind that statement seems to be
that 21 months is the bottom of the Guidelines range at offense
level 16, Criminal History category I, which is the range that
would have been applicable in Goff’s case if there had been no
five-level enhancement based on the number of pornographic
images.

                               7
to a four-month term of imprisonment.6 The court noted its
agreement with the government’s argument that “the
sentencing should send a message of the seriousness that the
law attributes to the particular crime[,]” but then noted that
Goff “deserve[d] to have his own personal life considered
carefully” and that “[w]hat would be fair in this situation is
largely subjective.”

        In imposing a sentence that was substantially lower
than the range set out by the applicable Sentencing
Guidelines, the court mentioned that it had considered the
Guidelines, but made no mention of the range that was
applicable to Goff. The court also considered a letter written
to the court by Goff’s psychiatrist, which stated that Goff
“had never acted out in any sexual way with children” and
that Goff’s behavior did not “signif[y] the presence of any
sexual deviancy.” The court also noted the number of letters

6
  In making the case that the District Court was excessively
generous in the downward variance of the sentence Goff received
as compared to the sentencing range called for by the Guidelines,
the government notes that the plea agreement in this case
“reflected a substantial reduction in the sentence otherwise called
for by Defendant’s conduct.” (Gov’t Op’g Br. At 5, no. 4.) The
government goes on to explain that “[b]ecause it was undisputed
that Goff ‘received’ the images by paying to download them from
a child porn website, the Government could have prosecuted Goff
under 18 U.S.C. § 2252A(a)(2)(A), which carries a five-year
mandatory minimum.” (Id.) Having engaged in what appears to
be charge bargaining, however, the government is ill-positioned to
argue that this court should take into account the seriousness of an
offense that the prosecution chose not to pursue.

                                 8
of support from friends, as well as parents and faculty from
the school where Goff had worked. It appears that the court
relied heavily on the fact that Goff had no criminal history
and had lived an “exemplary” life for fifty-four years. Based
on all of those factors, the court imposed a four month period
of incarceration, followed by a term of supervised release.

       Pursuant to 18 U.S.C. § 3742(b), the government
timely appealed the sentence imposed by the District Court as
unreasonable. We have jurisdiction pursuant to 28 U.S.C. §
1291.

                                   II.

       The Supreme Court’s decision in United States v.
Booker, 543 U.S. 220 (2005), rendered the Sentencing
Guidelines advisory. Under Booker, we review the sentence
imposed by the District Court for reasonableness, Booker, 543
U.S. at 261-62, which, in essence, calls upon us to “ask[]
whether the trial court abused its discretion ... .” Rita v.
United States, __ U.S. __, 2007 WL 1772146, at *9 (June 21,
2007). To determine whether a sentence is reasonable, the
court must examine “whether the record as a whole reflects
rational and meaningful consideration of the factors
enumerated in 18 U.S.C. § 3553(a).”7 United States v. Grier,


7
    Those factors are:
         (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,

                                    9
475 F.3d 556, 571 (3d Cir. 2007) (en banc); see also United
States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006) (“The
record must demonstrate the trial court gave meaningful
consideration to the § 3553(a) factors.”).



              to promote respect for the law, and to
              provide just punishment for the offense;
              (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--
              (A) issued by the Sentencing Commission ...
              subject to any amendments made to such
              policy statement by act of Congress ...;
      ...
      (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.

                               10
       In United States v. Gunter, 462 F.3d 237 (3d Cir.
2006), we set out a three-step process for district courts to
follow in imposing sentences after Booker. Those steps are:

       (1) Courts must continue to calculate a
       defendant’s Guidelines sentence precisely as
       they would have before Booker.

       (2) In doing so, they 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.

       (3) Finally, they are required to exercise their
       discretion by considering the relevant § 3553(a)
       factors, in setting the sentence they impose
       regardless [of] whether it varies from the
       sentence calculated under the Guidelines.

Id. at 247 (internal citations, quotation marks, and brackets
omitted). On appeal, “we must ... ascertain whether [the §
3553(a)] factors were reasonably applied to the circumstances
of the case.” Cooper, 437 F.3d at 330. Our review is
deferential, id., but a “significant departure” from the
Guidelines range “must be adequately supported by the
record.” United States v. King, 454 F.3d 187, 195 (3d Cir.
2006).



                              11
        Applying those standards here, we conclude that the
four-month sentence imposed on Goff was unreasonable,8 as
the District Court committed both procedural and substantive
errors in imposing that sentence. The court’s decision fails to
reflect the required analysis of the factors set out in § 3553(a).
Even if all the § 3553(a) factors had been considered,
however, a four-month sentence cannot be justified in this
case, because the circumstances do not warrant such a
downward variance.

                               III.

        The District Court’s sentencing decision is
procedurally flawed because the court failed to follow the
analysis we set out in Gunter. The court made no comment
on defense counsel’s repeated point that a five-level sentence
enhancement was excessive, nor did it properly consider the
factors set out in 18 U.S.C. § 3553(a). Although the District
Court is not required either to comment on every argument
counsel advances or to make findings as to each § 3553(a)
factor, it nevertheless should expressly deal with arguments
emphasized by the parties, and “the record [must] make[]
clear the court took the [§ 3553(a)] factors into account in
sentencing.” Cooper, 437 F.3d at 329. The record here falls
short of that.

       At step one of the Gunter sentencing analysis, “a trial
court must calculate the correct guidelines range applicable to


8
 The parties have not argued that the fine was unreasonable, and
we do not address that aspect of the sentence.

                               12
a defendant’s particular circumstances.” Cooper, 437 F.3d at
330. The Guidelines range was properly calculated in the pre-
sentence report in this case, based on the parties’
understanding at the time of the number of images Goff
possessed.9 Although the District Court did not mention the
Guidelines range when it imposed Goff’s sentence, it appears
the court ultimately accepted the range set out in the pre-
sentence report, since the “Statement of Reasons” in the
judgment and commitment order reflects that calculation. In
adopting that calculation, however, the court passed without
comment one of the central points of contention in the case.

        During the sentencing hearing, Goff’s attorney asserted
that the District Court should not apply the five-level
enhancement based on the number of images, arguing that the
Guidelines are only advisory and that the enhancement was
excessive. Additionally, he argued that, even if the court
followed the Guidelines and left the five-level enhancement in
place, it should, in its discretion under the Guidelines, apply

9
  In the pre-sentence report, Goff received a five-level
enhancement under U.S.S.G. § 2G2.4(b)(5)(D), because his
offense involved 600 or more images. This enhancement brought
his total offense level to 21, which correlated to a sentencing range
of 37-46 months. U.S.S.G. Ch. 5, Pt. A. The government
determined after sentencing that many of the 600 images were
duplicates, and that Goff only possessed 360 different images. As
a result, Goff should only have received a four-level enhancement
under U.S.S.G. § 2G2.4(b)(5)(C), which applies to offenses
involving at least 300 images, but fewer than 600. Thus, his total
offense level should have been 20, which correlates to a sentencing
range of 33-41 months. U.S.S.G. Ch. 5, Pt. A.

                                 13
the other § 3553(a) factors to reach a sentence below the
applicable Guidelines range. All of this sounds very much
like an objection to the five-level enhancement, but the record
is not entirely clear. On the one hand, defense counsel did
argue at length that the five-level enhancement should not
apply, JA 47-53, concluding, “under these circumstance, Your
Honor, ... this five levels [sic] seriously overstates the
seriousness, and ... Your Honor should not impose that five
level enhancement.” JA 53. On the other hand, when first
responding to the question “are there any objections [to the
presentence report,]” JA 47, he said, “I cannot say that in a
technical sense the Probation Department was incorrect in
reporting to you this five level enhancement, which is why I
didn’t officially object to it in that manner.” JA 48. The
government treated the defense arguments as an objection,
responding that, “for purposes of calculating the advisory
guideline range that five point enhancement should clearly
apply.” JA 68. The prosecutor then explained that hundreds
of pornographic images of children were still on the
defendant’s computer hard drive and had been possessed by
the defendant over time. JA 69-69.

       In passing sentence, the District Court did not discuss
any of the parties’ arguments or rule on the objection defense
counsel raised even as he said he was not “officially”
objecting. The judgment and commitment order later
included the Guidelines calculation with the five-level
enhancement, but that still has left the parties and this court
without a basis for understanding the reasons for that
outcome. In these circumstances, the court should have
directly addressed the arguments advanced about the

                              14
applicability of the five-level enhancement. Neglecting to
comment on those arguments, the District Court failed to
adequately address the first step required by Gunter.10

        The District Court had no occasion to consider
Gunter’s step two, since it did not have before it any motion
for a departure under the Guidelines. At step three, however,
the District Court faced the need that exists in every case to
address the § 3553(a) sentencing factors. It did not meet that
need. In fact, the District Court did not mention § 3553(a)
when it imposed its sentence, or the necessity of applying the
§ 3553(a) factors under our case law. Gunter, 462 F.3d at
247. The District Court did not give the Guidelines the
consideration they are due and did not adequately evaluate the
seriousness of Goff’s offense. The court also said nothing of
“the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty
of similar conduct,” as required by § 3553(a)(6). Discussion
of that factor should have been undertaken with particular
care in this case, given that the District Court sentenced Goff
to a term of imprisonment far below the sentences given to
similar offenders. Nor did the court adequately address the
impact its sentence would have on the deterrence of similar
criminal conduct.



10
  We would not be understood as requiring district courts to
explicitly rule on every argument that may be advanced, if other
aspects of the sentencing decision make a ruling implicit. Explicit
rulings are plainly to be preferred, however, both for the benefit of
the parties and for this court on review.

                                 15
        All of these are substantive problems, as explained in
greater detail below, infra Sec. IV, but they are a product of
the District Court’s procedurally flawed approach. We
reiterate what we have previously explained: there is no
mandatory script for sentencing. See United States v.
Charles, 467 F.3d 828, 831 (3d Cir. 2006) (“[T]he record
must demonstrate that the District Court gave meaningful
consideration to the relevant § 3553(a) factors. This
demonstration does not require district judges to routinely
state by rote that they have read the Booker decision or that
they know the sentencing guidelines are now advisory. Nor
does it require courts to state on the record that they have
explicitly considered each of the § 3553(a) factors or to
discuss each of the § 3553(a) factors. Rather, courts should
observe the requirement to state adequate reasons for a
sentence on the record so that we can engage in meaningful
appellate review.”) (internal citations, quotation marks, and
brackets omitted). Nevertheless, the Gunter procedures for
sentencing exist to guide the exercise of discretion. In
disregarding those procedures, the District Court put at risk
the substantive reasonableness of any decision it reached.

                              IV.

        That risk was realized in the imposition of a sentence
that, as just noted, effectively ignores several important
factors that ought to have been considered under § 3553(a).
First and most obviously, the District Court gave the
Guidelines themselves short shrift. Although after Booker the
Sentencing Guidelines are advisory, district courts are still
required to “calculate a defendant’s Guidelines sentence

                              16
precisely as they would have before Booker[,]” Gunter, 462
F.3d at 247, in part because the Guidelines reflect a carefully
considered assessment of the seriousness of federal crimes.
United States v. Goldberg, 491 F.3d 668, 673 (7th Cir. June
27, 2007) (noting that the Guidelines are “drafted by a
respected public body with access to the best knowledge and
practices of penology”). Thus, the Supreme Court has
recently held that “a court of appeals may apply a
presumption of reasonableness to a district court sentence that
reflects a proper application of the Sentencing Guidelines.”
Rita, 2007 WL 1772146 at *6. That decision supports our
prior instruction that “a within-guidelines range sentence is
more likely to be reasonable than one that lies outside the
advisory guidelines range[.]” United States v. Coleman, 451
F.3d 154, 158-59 (3d Cir. 2006) (emphasis in original); see
also Cooper, 437 F.3d at 331 (“[I]t is less likely that a within-
guidelines sentence, as opposed to an outside-guidelines
sentence, will be unreasonable.”).11

       The Sentencing Guidelines are based on the United
States Sentencing Commission’s in-depth research into prior


11
  The Supreme Court has granted certiorari in United States v.
Gall, No. 06-7949, to consider whether “the strength of the
justification needed to sustain an outside-Guidelines sentence
varies in proportion to the degree of the variance.” Rita, 2007 WL
1772146 at *11. We need not await the Supreme Court’s decision
in Gall, however, because, regardless of whether the justification
for the variance must be proportional to the variance, we hold that
the variance granted to Goff in this case was unreasonable because
of the insufficient justification for it on this record.

                                17
sentences, presentence investigations, probation and parole
office statistics, and other data. U.S.S.G. § 1A1.1, intro,
comment 3. More importantly, the Guidelines reflect
Congress’s determination of potential punishments, as set
forth in statutes, and Congress’s on-going approval of
Guidelines sentencing, through oversight of the Guidelines
revision process. See 28 U.S.C. § 994(p) (providing for
Congressional oversight of amendments to the Guidelines).
Because the Guidelines reflect the collected wisdom of
various institutions, they deserve careful consideration in each
case. Because they have been produced at Congress’s
direction, they cannot be ignored. See Rita, 2007 WL
1772146 at *8 (“[I]t is fair to assume that the Guidelines,
insofar as practicable, reflect a rough approximation of
sentences that might achieve § 3553(a)’s objectives.”). The
four-month sentence at issue here, imposed with barely a
mention of the Guidelines, suggests they were ignored, in
derogation of the express direction to the contrary in §
3553(a)(4).12

12
   As previously noted, supra n. 7, that subsection states in part:
“The court, in determining the particular sentence to be imposed,
shall consider ... the kinds of sentence and the sentencing range
established for ... the applicable category of offense committed by
the applicable category of defendant as set forth in the guidelines
... issued by the Sentencing Commission ... .”
        Under § 3553(a), the Guidelines are not the sole basis for
determining the reasonableness of a sentence, but they are plainly
important, and developments in the Guidelines can be relevant to
the question of reasonableness. See United States v. Johnson, 427
F.3d 423, 427 (7th Cir. 2005) (“Viewing the current version of
[the Guidelines] as one benchmark to gauge the reasonableness of

                                18
       Even if the Guidelines did not exist, however, it is
apparent that other § 3553(a) factors were not properly
considered. Subsection (a)(1) requires consideration of “the
nature and circumstances of the offense.” Subsection (a)(2)
requires consideration of “the seriousness of the offense,” and
the need to “promote respect for the law, ... to provide just
punishment ... .”13 Part of “just punishment” is the avoidance
of unwarranted sentencing disparities, as required by §
3553(a)(6). And, of course, sentencing must “afford adequate



[the defendant’s] sentence ...”). Goff’s sentence appears even
more unreasonable when measured against the sentencing range
provided in subsequent versions of the Sentencing Guidelines,
including the November 1, 2006 edition of the Guidelines. Under
that version of the Guidelines, the base level for the possession of
child pornography is 18, rather than 15 as under the November 1,
2003 version of the Guidelines. Compare U.S.S.G. § 2G2.4
(November 1, 2003) with § 2G2.2 (November 1, 2006). Goff’s
adjusted offense level would thus have been 23, not 20, giving a
Guidelines range of 46-57 months rather than 33-41 months.
13
  There is ample evidence of Congress’s intent that offenses
involving child pornography be treated severely. In 2003,
Congress enacted the Prosecutorial Remedies and Other Tools to
End the Exploitation of Children Today Act of 2003 (“PROTECT
Act”), Pub. L. No. 108-21, 117 Stat. 650 (codified as amended, in
pertinent part, at 18 U.S.C. § 3553(b)(2)(2004)). “The PROTECT
Act was designed to strengthen the laws and procedures for
detecting, investigating, prosecuting and incarcerating child
kidnappers and sexual offenders, including those who possess
child pornography.” United States v. Grigg, 442 F.3d 560 (7th Cir.
2006).

                                 19
deterrence to criminal conduct.” 18 U.S.C. § 3553(a)(2)(B).
None of these were adequately taken account of by the
District Court.

        Goff has attempted to downplay the nature and
seriousness of his crime, arguing in his brief that he was
simply a “curious, casual user” of the child pornography
website, and implying that his was a victimless crime because
viewing the pornography was “a solitary, private activity of
short duration driven by Mr. Goff’s curiosity of the subject.”
His attorney made similar statements at the sentencing
hearing. See, e.g., Joint Appendix [“JA”] at A53 (“[I]f the
anonymous interaction with a far away internet wasn’t
possible, this may never even have happened. But ... where
you have the ability to all by yourself, without involving
another human being, sit at your computer and ... bring up the
images that you want to look at, ... he violated the statute ...
.”); JA at A61 (“[He succumbed] to this urge or whatever it
was, to look at the images all by himself in his room”); JA at
A62 (“what he did alone in his house, all by himself, not
involving another human being, just the computer screen”).
In the letter he submitted to the District Court before
sentencing, Goff emphasized this point, saying, “no one else
was involved at any time.” JA at 96. The District Court
appears to have accepted this line of reasoning. Interrupting
the prosecutor’s argument that possession of child
pornography is “a serious matter and should be punished
seriously[,]” JA at 70, the court commented, “[b]ut [it’s] truly
a psychological crime. It is not a taking crime. ... Almost one
might say a psychiatric crime.” Id.



                              20
        The briefest of forays into Goff’s on-line fantasy world
gives the lie to his cant about “solitary” activities and exposes
the basic flaw in the District Court’s implied conclusion that
nothing wrong was going on here except in Goff’s mind.
According to the presentence report, one of the images is of
“an adult male performing oral sex on a prepubescent
female.” The report goes on to describe, in detail we will
spare readers, what is visible in the picture, as well as details
of other examples from the hundreds of pictures Goff had
paid for over time. Children are exploited, molested, and
raped for the prurient pleasure of Goff and others who support
suppliers of child pornography. These small victims may
rank as “no one else” in Goff’s mind, but they do indeed exist
outside his mind. Their injuries and the taking of their
innocence are all too real. There is nothing “casual” or
theoretical about the scars they will bear from being abused
for Goff’s advantage. Far from persuading us that Goff’s
crime was relatively minor, his efforts to downplay the harm
his actions have inflicted on others serve chiefly to highlight
the concern the District Court should have had with Goff’s
failure to appreciate the seriousness of his offense.14




14
  At the very outset of its presentation at sentencing, the
government pointed out the fundamental problem with the defense
argument: “The one thing [defense counsel] said that I would take
issue with, is the issue of this crime not involving another human
being. This crime involves possession of child pornography,
which is a very serious crime that does involve other human beings
who are exploited when the images are manufactured.” JA at 65.

                               21
        Similarly, Goff should not have gained any ground at
sentencing by claiming, through his psychiatrist, that he has
“never acted out in any sexual way with children ... .” JA 77.
He was not charged with molestation, so pointing out that he
hadn’t committed it is, in one sense, irrelevant. See United
States v. Duhon, 440 F.3d 711, 718 (5th Cir. 2006)
(explaining that the law already “makes a dramatic
distinction,” between offenders who simply possess child
pornography and those who molest children by establishing
higher sentences for offenders who directly harm minors). In
another more important sense, however, it does say something
meaningful, albeit not what the defense intended. While the
defense effort to draw a spectator-vs.-participant distinction
does not show that Goff’s pornography crime was of less than
ordinary severity, it does reemphasize that Goff failed to fully
appreciate that severity.15 The simple fact that the images
have been disseminated perpetuates the abuse initiated by the
producer of the materials. “The materials produced are a
permanent record of the children’s participation and the harm
to the child is exacerbated by their circulation.” New York v.
Ferber, 458 U.S. 747, 759 (1982); see also Osborne v. Ohio,
495 U.S. 103, 111 (1990) (“The pornography’s continued
existence causes the child victims continuing harm by
haunting the children for years to come.”). Consumers such as
Goff who “merely” or “passively” receive or possess child


15
  Goff was not totally oblivious on this point. He did seem to
recognize his role to some degree when he told the court he wanted
to “reiterate [his] remorse that [his] behavior may in some way
have contributed to the exploitation of children.” JA 62. That
expression was, however, far too little and far too late.

                               22
pornography directly contribute to this continuing
victimization. Having paid others to “act out” for him, the
victims are no less damaged for his having remained safely at
home, and his voyeurism has actively contributed to a tide of
depravity that Congress, expressing the will of our nation, has
condemned in the strongest terms. Cf. Child Pornography
Prevention Act of 1996 (“CPPA”), Pub. L. 104-208, sec. 121,
110 Stat. 3009-26, reprinted in 18 U.S.C. § 2251 note at 611
(“Congress finds that . . . where children are used in its
production, child pornography permanently records the
victim's abuse, and its continued existence causes the child
victims of sexual abuse continuing harm by haunting those
children in future years . . . .”).

        In addition the consumer of child pornography “creates
a market” for the abuse by providing an economic motive for
creating and distributing the materials. See Osborne, 495
U.S. at 109-12; Ferber, 458 U.S. at 755-56; CPPA, 110 Stat.
3009-27 (“[T]he existence of a traffic in child pornographic
images . . . increas[es] the creation and distribution of child
pornography . . .,” and “prohibiting the possession and
viewing of child pornography will . . . eliminate the market . .
. .”). In United States v. Ketcham, 80 F.3d 789 (3d Cir. 1996),
we explained that Congress’s criminalization of the mere
possession of child pornography “discourages its production
by depriving would-be producers of a market.” Id. at 793.
The District Court should have given significantly greater
weight to the seriousness of Goff’s offense.

       The discounting of Goff’s offense becomes even
clearer when his sentence is compared to the Guidelines

                              23
ranges for other child pornography offenses of a less
aggravated character. As the government points out, the
Guidelines range for a defendant who possessed a single
pornographic image of a child older than twelve that had not
been obtained through use of a computer, assuming the
defendant had been given the same three-level credit for
acceptance of responsibility that Goff received, would still be
10-16 months of imprisonment. See U.S.S.G. § 2G2.4 and
Ch. 5 Pt. A. The sentence imposed by the District Court on
Goff for possessing hundreds of internet-acquired images of
pre-pubescent children is thus below the Guidelines range for
a relatively less severe offense.

       Of course, it is a challenge to speak of different shades
of culpability for possessing child pornography. Child
pornography is so odious, so obviously at odds with common
decency, that there is a real risk that offenders will be
subjected to indiscriminate punishment based solely on the
repugnance of the crime and in disregard of other
Congressionally mandated sentencing considerations. The
District Court here was clearly and commendably
endeavoring to avoid the tendency to ignore the individual
defendant because of the enormity of his crime. Nevertheless,
the court ended up erring in the opposite direction. It placed
undue emphasis on Goff’s personal life and failed to give
adequate weight to the severity of his offense.

        While Goff’s personal life and personal characteristics
are a factor to be considered under 18 U.S.C. § 3553(a)(1),
the District Court improperly took Goff’s lack of criminal
history, and the fact that he did not commit a more severe

                              24
crime by molesting a child, as somehow meaning that his
offense was dramatically different from other child
pornography cases. It is not. See United States v. Grinbergs,
470 F.3d 758, 761 (8th Cir. 2006) (finding that, in a child
pornography case, the District Court erred when it relied on
the fact that the defendant had not molested a child or
produced child pornography to deem an offense “atypical
simply because the defendant had not committed other
crimes.”). Indeed, one of the reasons that the Guidelines are
of significant assistance in sentencing is that they incorporate
the results of research into what may be called the “heartland”
of sentencing considerations and incarceration periods for
typical offenses and offenders. See U.S.S.G. § 1A1.1, intro,
comment 3 (stating that the Sentencing Commission used
“data estimating the existing sentencing system as a starting
point.”); cf. Rita, 2007 WL 1772146, at *9 (discussing
potential arguments that a sentence should be reduced because
“the case at hand falls outside the ‘heartland’ to which the
Commission intends individual Guidelines to apply”).

       Despite his arguments implying the contrary, Goff’s
criminal history, in Category I, is similar to the vast majority
of those convicted for possession of child pornography.16 In


16
  The District Court also put undue emphasis on Goff’s service to
the community in contravention of a policy statement in the
Guidelines, a factor to be considered under § 3553(a)(5), which
only allows such a departure when a defendant’s service is
extraordinary. See U.S.S.G. § 5H1.11 (“Military, civic, charitable,
or public service; employment-related contributions; and similar
prior good works are not ordinarily relevant in determining

                                25
fact, in the U.S. Sentencing Commission’s Final Report on
the Impact of United States v. Booker On Federal Sentencing,
March 2006, Table 18 (available at
http://www.ussc.gov/booker_report/Booker_Report.pdf), the
Commission reported that, in post-Booker sentencing of those
convicted of possession of child pornography, 322 out of 387
total offenders had a Criminal History Category of I. Thus,
Goff is no outlier; he is, on the contrary, plainly in the
“heartland” of offenders.17

      Furthermore, other defendants sentenced for
possession of child pornography in New Jersey have received
much harsher sentences than Goff’s. For example, another
defendant caught as a result of the same investigation that
caught Goff was sentenced by another Judge in the District of
New Jersey to 28 months of imprisonment based on a


whether a sentence should be outside the applicable guideline
range.”); Koon v. United States, 518 U.S. 81, 96 (1996) (“If the
special factor is a discouraged factor ... the court should depart
only if the factor is present to an exceptional degree[.]”). Only
truly extraordinary circumstances, circumstances which are not
evident in this case, could have allowed the District Court to
determine that a four-month sentence was appropriate.
17
  We note that the sentencing range set out in the Guidelines
specifically accounts for the criminal history of the person being
sentenced. See U.S.S.G.§ 5H1.8; Koon v. United States, 518 U.S.
81, 111 (1996) (“The District Court abused its discretion by
considering appellants’ low likelihood of recidivism. The
[Sentencing] Commission took that factor into account in
formulating the criminal history category.”).

                                 26
Guidelines range of 27-33 months. See Adams v. United
States, No. 06-3398 (MLC), 2007 WL 1544208, at *8 (D.N.J.
May 29, 2007). As a result, Goff’s sentence creates a
potential disparity in sentence for those convicted of
possession of child pornography in New Jersey, and across
the country, based on little, if anything, more than the luck of
which judge is assigned to a particular case.18

        Finally, § 3553(a) also demands that sentencing courts
pay attention to the need to deter future crimes. “The logic of
deterrence suggests that the lighter the punishment for
downloading and uploading child pornography, the greater the
customer demand for it and so the more will be produced.”
Goldberg, 491F.3d at 672. Thus, deterring the production of
child pornography and protecting the children who are
victimized by it are factors that should have been given
significant weight at sentencing, but in fact received not a
word from the District Court. If they were considered at all, it
is not apparent on this record.


18
  Judges may have, as the government suggests was the case here
(Appellant’s Opening Brief at 8, n. 7; Reply Brief at 18, n. 7),
sincerely held policy disagreements with the weight of sentences
generally called for by the Guidelines in certain categories of
cases. However, as we have recently emphasized in United States
v. Ricks, 2007 WL 2068098 (3d Cir. July 20, 2007), policy
disagreements are not a basis for bypassing the Guidelines. See id.
at *5 (stating on review of sentence rejecting Guidelines’ treatment
of crack cocaine convictions, “[w]e conclude that a district court
fails to ‘meaningfully consider’ the Guidelines when it rejects the
100-to-1 ratio as a matter of policy”).

                                27
                                 V.

        In sentencing Goff, the District Court did not properly
consider the Sentencing Guidelines or the remaining factors
set forth in § 3553(a).19 Whether viewed as a departure within
the Guidelines or a variance from them,20 a sentence of four
months is a drastic reduction and unreasonable in light of the

19
  Goff also asserts that his sentence actually reflects a split
sentence which is within the Guidelines range. Goff asserts that
his sentence of four months of imprisonment, followed by three
years of supervised release, for a total of forty months, fits within
the proper Guideline range of 33-41 months. However, Goff’s
assertion is belied by the language of the Guidelines. Goff’s
offense level and criminal history category clearly put him in Zone
D of the Sentencing Table. U.S.S.G. Ch. 5 Pt. A. According to
the Guidelines, “[i]f the applicable guideline range is in Zone D of
the Sentencing Table, the minimum term shall be satisfied by a
sentence of imprisonment.” U.S.S.G. § 5C1.1. This is in contrast
to sentences in Zone A, where no imprisonment is required, Zone
B, where a sentence of probation can be appropriate, and Zone C,
where at least half of the minimum term of the sentence must be
satisfied by imprisonment. Id. Thus, because Goff is not eligible
for a split sentence under the appropriate Guidelines provision, his
argument that his short period of confinement followed by
supervised release constitutes a split sentence is without merit.
20
   After United States v. Vampire Nation, 451 F.3d 189 (3d Cir.
2006), our court distinguishes between traditional departures based
on a specific Guidelines provision and sentencing “variances”
from the Guidelines that are based on Booker and the § 3553(a)
factors. Id. at 195 n.2.

                                 28
facts and circumstances revealed in the record. Accordingly,
the sentence must be vacated and the case remanded for re-
sentencing.




                             29
