                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-4078



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellant,

           versus


ROBERT JOHNSON,

                                              Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Malcolm J. Howard,
District Judge. (5:05-cr-00110-H-ALL)


Argued:   May 25, 2007                      Decided:   July 18, 2007


Before TRAXLER and KING, Circuit Judges, and T. S. ELLIS, III,
Senior United States District Judge for the Eastern District of
Virginia, sitting by designation.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Joe Exum, Jr., Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellant.
Richard L. Rosenbaum, Fort Lauderdale, Florida, for Appellee. ON
BRIEF: George E. B. Holding, Acting United States Attorney, Anne M.
Hayes, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellant.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      The United States appeals the 144-month sentence imposed on

appellant Robert Johnson for three child pornography offenses.                 We

conclude the sentence is procedurally and substantively infirm, and

accordingly we vacate and remand for resentencing.



                                       I.

      Johnson pled guilty to a three-count indictment charging him

with transmission, receipt, and possession of child pornography in

violation of 18 U.S.C. §§ 2252(a)(1), (a)(2), and (a)(4)(B),

respectively.     Johnson’s arrest was precipitated by the arrest of

a   cooperating   witness    who     permitted    Immigration       and   Customs

Enforcement (ICE) agents to utilize his email address and chat room

identity.     In February 2004, Johnson sent several emails and

instant-messages to this online identity, whom he believed to be

the cooperating witness, but who was in fact a government agent

utilizing the cooperating witness’ identity.                 In these messages,

Johnson    described,   inter   alia,       viewing    child    pornography   and

grooming his grandchildren for sex with him.                During the exchange,

Johnson also sent 11 images of child pornography and a video image

of himself to the agent.        ICE traced the email and messages to

Johnson,    obtained    a   search    warrant,        and   searched   Johnson’s

residence and computer on November 10, 2004.                     The search of

Johnson’s computer equipment disclosed over 1,900 images of child


                                       2
pornography, including sexually explicit still images and videos.1

Most of the images depicted pre-pubescent victims.          Moreover, many

of the victims were in bondage,2 and one victim appeared to be

deceased.   ICE agents also recovered from Johnson’s computer logs

of Johnson’s conversations in chat rooms, which revealed that

Johnson, by his own statements, had (i) watched live molestation or

sexual abuse of children over the Internet, (ii) exposed himself to

children over the Internet, (iii) used the Internet to arrange a

sexual encounter with a child, and (iv) had sex with children in

the Dominican Republic.       Johnson’s passport indicated he had

recently traveled to the Dominican Republic.

     Following the search, Johnson was indicted on April 20, 2005,

arrested two days later, and pled guilty on August 1, 2005.           The

district    judge   ordered   the    preparation   of   a    pre-sentence

investigation report (PSIR).        As the PSIR noted, and as defense

counsel argued at sentencing, Johnson successfully raised two adult

children, maintained gainful employment, provided extensive care to

his ex-wife for her alcohol abuse and multiple sclerosis, and,

apart from the instant offenses, lived an essentially law-abiding




     1
      This total number of images is arrived at by considering, as
the Guidelines direct, that one video is equivalent to 75 still
images. See U.S.S.G. § 2G2.2 cmt. n.4(B)(ii).
     2
      For example, the government describes one image as depicting
a naked, pre-pubescent child suspended upside down, bound and
gagged, with what appears to be a Sharpie pen lodged in her vagina.

                                     3
life.    As counsel and the PSIR also noted, Johnson was 54 years old

when sentenced.

     Based on the PSIR, which the district judge adopted, the

offenses    had   a   base   offense   level   of   22   under   the   advisory

Sentencing Guidelines.        In calculating the appropriate Guidelines

range, the district judge also added the following enhancements:

(i) a two-level enhancement because the images depicted children

under the age of 12, U.S.S.G. § 2G2.2(a)(2), (ii) a five-level

enhancement because the offense involved distribution, receipt, or

expected receipt of a thing of value but not for pecuniary gain,

U.S.S.G. § 2G2.2(b)(3)(B), (iii) a four-level enhancement because

the images depicted sadistic or masochistic conduct, or other

depictions of violence, U.S.S.G. § 2G2.2(b)(4), (iv) a two-level

enhancement for use of a computer, U.S.S.G. § 2G2.2(b)(6), and (v)

a five-level enhancement because the offense involved 600 or more

images of child pornography, U.S.S.G. § 2G2.2(b)(7)(D).                A three-

level reduction for acceptance of responsibility was also allowed,

U.S.S.G. § 3E1.1(e), bringing the final offense level to 37. Since

Johnson’s criminal history category was I, his advisory Guidelines

range was thus 210 to 262 months.3         U.S.S.G. § 5A (table).       The top

of this range was restricted to 240 months, the statutory maximum



     3
      The PSIR erroneously stated that the applicable Guidelines
range was 240 months. See Joint Appendix (JA) at 180. The district
judge repeated this error in the course of sentencing and in the
judgment and commitment order. See JA 185.

                                       4
for   counts   1    (transmission)    and       2   (receipt).         18    U.S.C.   §

2252(b)(1).    The maximum sentence for count 3 (possession) was 120

months.     18 U.S.C. § 2252(b)(2).

      At sentencing, the district judge heard argument from counsel

and testimony from defense psychologists opining that Johnson was

not a pedophile, that is, that he did not act on his sexual

attraction to children or attempt to prey on children, and that his

sexual    attraction    to    children        did   not   disrupt      his   personal

relationships.       The district judge did not weigh this testimony

against other contrary evidence and made no explicit finding

concerning whether Johnson was a pedophile.

      In the end, the district judge elected to impose a variance

sentence consisting of sixty months as to each of counts 1 and 2,

and a twenty-four month sentence as to count 3, all to run

consecutively, for a total custody sentence of 144 months.4                       This

sentence represented a sixty six month, or thirty one percent,

downward variance from the bottom of the advisory Guidelines range.

The district judge justified the departure by reference chiefly to

Johnson’s    age,   stating    in   the       judgment    that   the    “reason   for

sentence outside [the Guidelines] is due to the defendant’s age at

the time of release weighed against the amount of time served




      4
      The district judge also imposed supervised release and a
$20,000 fine.

                                          5
within the Guideline range.”           The government opposed this variance

and timely noticed this appeal.



                                        II.

     We review sentences on appeal for reasonableness, a “complex

and nuanced” task in which our ultimate goal is to consider

“whether the sentence was selected pursuant to a reasoned process

in accordance with law, in which the court did not give excessive

weight to any relevant factor, and which effected a fair and just

result in light of the relevant facts and law.”                    United States v.

Green, 436 F.3d 449, 456-57 (4th Cir.), cert. denied, 126 S. Ct.

2309 (2006).     A sentence within the advisory Guidelines range is

“presumptively    reasonable,”         id.    at    457,   but    of     course,      this

presumption does not operate here, as a variance sentence was

imposed.

     As    we   have   noted,      a   sentence      may     be   unreasonable        for

procedural or substantive reasons.                  A sentence is procedurally

unreasonable     if    the    district       judge    provides          an    inadequate

explanation for the sentence or fails to make a finding of fact

necessary to support the sentence.             United States v. Moreland, 437

F.3d 424, 434 (4th Cir. 2006).                     We have also explained the

procedure a district judge must follow in imposing any sentence,

including a variance sentence.               First, the district judge must

correctly   calculate        the   Guidelines       range.        Id.    at    432.     A


                                         6
miscalculation of the applicable Guidelines range is an error of

law which typically renders a sentence unreasonable.            Id. at 433;

see also Green, 436 F.3d at 457.           Next, the district judge must

determine whether a sentence within the Guidelines range serves the

sentencing factors set forth in 18 U.S.C. § 3553(a). Moreland, 437

F.3d at 432.     If not, the district judge must impose a sentence

that serves those factors, constrained by any statutory minima or

maxima.   Id.   In doing so, the district judge should first consider

whether   a   departure   is   warranted   based   on   the   Guidelines   or

existing case law.     Id.     If a departure is not available, or the

resulting departure range still does not adequately serve the §

3553(a) factors, the district judge may impose a variance sentence,

taking care to explain and justify the variance by reference to the

§ 3553(a) factors.    Id. at 432-33.       The greater the extent of the

variance, the more closely we scrutinize the reasons offered in

support of it, and the more compelling those reasons must be.              Id.

Nonetheless, a district judge need not mechanically check off the

list of § 3553(a) factors; instead, “it is enough to calculate the

[Guidelines] range accurately and explain why (if the sentence lies

outside it) this defendant deserves more or less.”            Id. at 432-33.

     With these principles in mind, it is apparent that the 144-

month sentence in this case is procedurally unreasonable.            First,

the district judge relied on an incorrect calculation of the

Guidelines range, concluding erroneously, both at sentencing and in


                                     7
the judgment and commitment order, that the appropriate Guidelines

range was 240 months.        Second, the district judge imposed a

variance sentence without first considering the possibility of a

conventional downward departure under the Guidelines.       A downward

departure   for   age   is   explicitly   discouraged,   although   not

altogether precluded by a Guidelines policy statement, U.S.S.G. §

5H1.1, which a sentencing judge is required to take into account by

§ 3553(a)(5).     Procedurally, then, before imposing a variance

sentence on a ground to which the Guidelines speak, the district

judge should have considered the possibility of a Guidelines

departure based on age, even though the ultimate conclusion might

well be that a departure on this ground was not warranted.     We note

that even if the district judge had concluded that no age-based

departure was warranted, as likely would have been the case,5 the


     5
      The Guidelines policy statement notes that “age (including
youth) is not ordinarily relevant in determining whether a
departure is warranted,” though exceptions may exist for “elderly
and infirm” defendants for whom other forms of punishment would be
“equally efficient and less costly.” U.S.S.G. § 5H1.1. Pre-Booker
jurisprudence held that a departure based on age and infirmity (or
any disfavored factor) is to be granted only in extraordinary
circumstances, that is, when the disfavored factor is present to an
exceptional degree or “in some other way that makes the case
different from the ordinary case where the factor is present.”
United States v. Summers, 893 F.2d 63, 68-69 (4th Cir. 1990);
United States v. Hairston, 96 F.3d 102, 105-06 (4th Cir. 1996)
(internal citations omitted). Further, our sister circuits have
held that downward departures are inappropriate when based merely
on the fact that a defendant would be elderly when released, or
that a lengthy Guidelines sentence would effectively sentence an
elderly defendant to life. See, e.g., United States v. Jackson, 30
F.3d 199, 202-03 (1st Cir. 1994) (interrelationship of age and
prospective sentence is not adequate grounds for departure) (citing

                                   8
discipline of following this required sentencing procedure would

have       alerted   the   district   judge   to   the   fact   that   age-based

departures are disfavored and thus to the need to take special care

to explain fully the reasons under § 3553(a) for a variance

sentence.

       The final procedural infirmity is the district judge’s failure

to acknowledge and take into account Congress’ policy judgment –

embodied in § 3553(b)(2)(A)(ii)6 – that child pornography crimes


cases); United States v. Fierro, 38 F.3d 761, 775 (5th Cir.), cert.
denied 514 U.S. 1051 (1994) (downward departure inappropriate based
on fact that defendant would be 64 or 65 when released; departure
not warranted when defendant is not elderly and infirm at the time
of sentencing).    Indeed, no reported circuit decision has been
found approving a downward departure based solely on a defendant’s
age. But some courts have found that where a defendant’s age and
medical condition render him feeble and infirm, a departure may
appropriately be granted. See, e.g., United States v. Barron, 914
F. Supp. 660 (D. Mass 1995) (76 year old defendant, suffering from,
inter alia, heart condition, suspected prostate cancer, pituitary
disease, removed pituitary gland, and unstable mental condition,
warranted downward departure).
       6
           This provision provides that

               [i]n sentencing a defendant convicted of an
               offense
               . . . under chapter . . . 110 [Sexual Exploitation and
               Other Abuse of Children] . . . the court shall impose a
               sentence of the kind, and within the range, referred to
               in subsection (a)(4)[, that is, a Guidelines sentence,]
               unless –
               (ii) the court finds that there exists a
               mitigating circumstance of a kind, or to a
               degree that
                    (I) has been affirmatively and
                    specifically    identified    as   a
                    permissible   ground   of   downward
                    departure    in    the    sentencing
                    guidelines or policy statements ...

                                        9
are grave offenses warranting significant sentences. As originally

enacted,    this   provision    mandated       no   less   than    a   Guidelines

sentence, but as required by Booker, we have held the mandatory

language unconstitutional and excised it from the statute.                    United

States     v.   Hecht,   470    F.3d    177,    181-82      (4th     Cir.     2006).

Nonetheless, it remains true that a district judge “in the course

of selecting an appropriate sentence, ought to give respectful

attention to Congress’ view that . . . [child pornography crimes]

are serious offenses deserving serious sanctions.” Id. at 182. We

see no record evidence that the district judge considered Congress’

policy judgment concerning child pornography offenses in granting

a   variance.      Together    with    the   others      described     here,    this

procedural      shortcoming    is   sufficient      to   render    the      sentence

procedurally unreasonable.7

      Quite apart from its procedural infirmities, it appears the

sentence is also substantively flawed; it is based on a factor



                   (II) has not been taken into
                   consideration by the Sentencing
                   Commission   in   formulating   the
                   guidelines, and
                   (III) should result in a sentence
                   different from that described... .

      18 U.S.C. § 3553(b)(2)(A)(ii).
      7
      Moreland and Green had not been decided at the time of
sentencing, and accordingly, we intend no criticism of the district
judge for failing to follow the procedures we announced in those
decisions. See United States v. Khan, 461 F.3d 477, 499 n.14 (4th
Cir. 2006).

                                       10
that, even if otherwise permissible as a basis for a variance,

cannot support a variance sentence in the circumstances of this

case.     Here, the district judge imposed the variance sentence not

on the basis of a reasoned application of the § 3553(a) factors,

but rather, solely on Johnson’s age, the district judge noting that

Johnson would be approximately 75 years old when released and that

his   imprisonment     would    “cost     the   taxpayers     several   million

dollars.”

      The question, then, is whether this variance sentence can be

justified on the basis of Johnson’s age.            Whether age, by itself,

can support a variance sentence is an open question in this

circuit,    as   we   have   previously      declined   to   decide   whether   a

variance may be granted based on a factor “discouraged as a basis

for departure under the Guidelines.” United States v. Hampton, 441

F.3d 284, 289 (4th Cir. 2006).8           Nor must we decide the question

today, for assuming without deciding that we were to follow the



      8
      Other circuits have generally concluded that variances may be
granted in reliance on discouraged or forbidden Guidelines factors,
as “the guidelines . . . are no longer decisive as to factors any
more than as to results,” though “reliance on a discounted or
excluded factor may, like the extent of the variance, have some
bearing on reasonableness.” United States v. Smith, 445 F.3d 1, 5
(1st Cir. 2006). See also United States v. Davis, 458 F.3d 491,
498 (6th Cir. 2006) (district court “has a freer hand to account
for the defendant’s age in its sentencing calculus under § 3553(a)
than it had before Booker”); United States v. Simmons, 470 F.3d
1115, 1130-31 (5th Cir. 2006) (same). But see United States v.
Lee, 454 F.3d 836, 839 (8th Cir. 2006) (“age is normally not
relevant to sentencing, unless the defendant is elderly and
infirm”).

                                        11
majority of circuits and conclude that disfavored factors may

appropriately   form   the   basis   of   a   variance   sentence   in   some

circumstances, it is nonetheless apparent that a variance based on

Johnson’s age was substantively unreasonable here.

     First, no reason is apparent on this record why Johnson’s age

is a personal characteristic that would justify a variance, or

indeed, that should matter to the § 3553(a) calculus at all.

Although Johnson’s health is described in the PSIR as only “fair,”

he certainly is not infirm.      Defense counsel argued that Johnson

would not survive a 240-month sentence, but there is no medical

evidence in the record to that effect.         More to the point, we fail

to see how the egregiousness of Johnson’s offenses, the clear

statements of Congressional policy acknowledging the grave nature

of child pornography crimes, the need to deter further appalling

abuse of children, and the need to avoid unwarranted disparities in

sentences imposed on persons convicted of similar offenses, all of

which militate strongly in favor of a Guidelines sentence, could be

outweighed by a single personal characteristic that is not atypical

of child pornography offenders.9      Johnson’s unexceptional personal

history and characteristics, including his age, do not distinguish


     9
      Indeed, as the government points out, a study by the National
Center for Missing and Exploited Children has concluded that men
over age 40 are the most common offenders of the child pornography
laws.    See Wolak, Finklehor, and Mitchell, Child Pornography
Possessors Arrested in Internet-Related Crimes: Findings from the
National Juvenile Online Victimization Study (2005), available at
http://www.missingkids.com/en_US/publications/NC144.pdf.

                                     12
him from other defendants convicted of child pornography crimes,

and accordingly, they do not justify a variance sentence.

     For all the reasons stated herein, Johnson’s sentence must be

vacated and the case remanded for resentencing.

                                             VACATED AND REMANDED




                               13
