                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 11-4267
                                     ____________

                           UNITED STATES OF AMERICA

                                            v.

                                 PETER DAFFERNER,
                                                 Appellant
                                    ____________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                                 (D.C. No. 10-cr-00350)
                     District Judge: Honorable Susan D. Wigenton
                                      ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   July 13, 2012

             Before: FUENTES, HARDIMAN, and ROTH, Circuit Judges.

                                  (Filed: July 23, 2012)
                                      ____________

                                OPINION OF THE COURT
                                     ____________

HARDIMAN, Circuit Judge.

      Peter Dafferner appeals his judgment of sentence after pleading guilty to

possession of child pornography. Because we hold that Dafferner’s sentence is not

unreasonable, we will affirm.
                                             I

       In September 2008, the FBI learned that Dafferner, a sixty-eight-year-old father of

three, had paid to access child pornography websites. Thereafter, Dafferner responded to

a solicitation e-mail sent by the FBI’s own undercover website offering child

pornography images and videos. When agents later seized Dafferner’s computer

equipment and hard drives pursuant to a warrant, they found 726 pornographic images

and one twelve-second video of prepubescent and infant children, some of which

depicted sadistic and masochistic sexual conduct. Dafferner pleaded guilty to one count

of possession of child pornography pursuant to 18 U.S.C. § 2252A(a)(5)(B).

       In its Presentence Investigation Report (PSR), the Probation Office calculated

Dafferner’s total offense level as 28 and his criminal history as category I, which yielded

an advisory Guidelines range of 78 to 97 months. Dafferner requested a downward

variance, citing his abusive childhood, advanced age, poor health, and lack of criminal

history. He also claimed that he had downloaded and viewed the pornographic images as

part of his research and writing on the exploitation of children in the pornography

business. He acknowledged that he made a serious mistake but maintained that he did not

believe his conduct was criminal. Dafferner also submitted a report from his

psychologist, Dr. Zelick Block, who opined that Dafferner exhibited “no abnormal

concern with sex or sexual matters” and that he showed “serious remorse concerning his

‘stupidity’” in downloading the images. According to Dr. Block’s report, Dafferner


                                             2
“show[ed] no signs of pedophilia, voyeurism or pornography.” The Government opposed

any downward variance.

       In November 2011, the District Court held a sentencing hearing, at which it denied

Dafferner’s request for a downward variance. Noting its discretion to vary from the

Guidelines range, the Court nevertheless found that Dafferner’s purported naïveté

regarding the criminality of his actions did not warrant a below-Guidelines sentence. The

Court declined to decide whether, in fact, Dafferner possessed child pornography only in

service of his plan to write a book regarding child abuse, but the Court explained that it

did “not believe it takes 726 pictures and a film to write anything about something this

horrific.” Expressly acknowledging that it had “to look at Mr. Dafferner as an

individual,” the Court noted that Dafferner had no prior criminal offense. The Court also

explained its responsibilities to “address the crime” at issue and to “protect the public

from crimes of this nature.” The images’ depiction of prepubescent children and sado-

masochistic conduct, as well as the large number of images and the use of a computer to

access them, left the Court “satisfied that the Guidelines accurately reflect[ed] an

appropriate sentence.” Accordingly, the District Court sentenced Dafferner to 78

months’ imprisonment, five years of supervised release, and a $1,250 fine. Dafferner

timely appealed.

                                              II

       Dafferner does not challenge the District Court’s calculation of his Guidelines


                                              3
range. Rather, he argues that the District Court committed procedural error by failing to

thoroughly analyze the following relevant factors under 18 U.S.C. § 3553(a): his

traumatic childhood, Dr. Block’s opinions, and the possibility that a prison term would

constitute a life sentence given his age and health problems. Relatedly, Dafferner

contends that his 78-month, bottom-of-the-Guidelines sentence was substantively

unreasonable because no reasonable judge would impose such a lengthy term under the

circumstances.

       We find no abuse of discretion in the District Court’s sentencing decision. See,

e.g., Gall v. United States, 552 U.S. 38, 56 (2007); United States v. Winebarger, 664 F.3d

388, 392 n.2 (3d Cir. 2011). Dafferner correctly points out that a failure to give

“meaningful consideration” to the § 3553(a) factors or to adequately explain the sentence

imposed constitutes procedural error. See United States v. Tomko, 562 F.3d 558, 567 (3d

Cir. 2009) (en banc); United States v. Kononchuk, 485 F.3d 199, 204 (3d Cir. 2007).

Indeed, the record must show “more than a rote recitation of the § 3553(a) factors.”

Tomko, 562 F.3d at 567 (citing United States v. Cooper, 437 F.3d 324, 329 (3d Cir.

2006), abrogated on other grounds by Kimbrough v. United States, 552 U.S. 85 (2007)).

Contrary to Dafferner’s representations, however, the District Court did not give short

shrift to the “nature and circumstances of the offense” or Dafferner’s “history and

characteristics.” 18 U.S.C. § 3553(a). Sentencing courts need not discuss every

mitigation argument presented by a defendant nor make specific findings regarding each


                                             4
§ 3553(a) factor. See Cooper, 437 F.3d at 329.

       It is sufficient here that the District Court made clear that it had reviewed the PSR

and the parties’ sentencing memoranda and acknowledged the parties’ arguments before

explicitly denying Dafferner’s request for a downward variance. See Rita v. United

States, 551 U.S. 338, 358 (2007) (“The record makes clear that the sentencing judge

listened to each argument. . . . The judge then simply found these circumstances

insufficient to warrant a sentence lower than the Guidelines range . . . . [H]e found that

the 33-month sentence at the bottom of the Guidelines range was ‘appropriate.’ He must

have believed that there was not much more to say.” (citation omitted)); accord United

States v. Olfano, 503 F.3d 240, 244–45 (3d Cir. 2007). Our precedents do not demand

more, especially where Dafferner’s sentence falls within—indeed, at the very bottom

of—the advisory Guidelines range. See Tomko, 562 F.3d at 571; Olfano, 503 F.3d at

245.

       Nor was the District Court’s refusal to vary downward substantively unreasonable.

The District Court reasonably concluded that the sado-masochistic character of the

images, the number of images, and the need for general deterrence of the widespread

crime of child pornography justified a within-Guidelines sentence, notwithstanding

Dafferner’s troubling unawareness that purchasing access to such images is illegal. The

circumstances of Dafferner’s age, health, and childhood trauma do not compel the

conclusion that “no reasonable sentencing court would have imposed the same sentence


                                             5
on [Dafferner] for the reasons the [Court] provided.” Tomko, 562 F.3d at 568.

                                           III

      For the reasons stated, we will affirm the District Court’s judgment of sentence.




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