                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 10-1590

U NITED S TATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                  v.

JOHN M ANTANES,
                                               Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
             No. 1:09-cr-00049-1—Ruben Castillo, Judge.


   A RGUED N OVEMBER 5, 2010—D ECIDED JANUARY 13, 2011




 Before E VANS, S YKES, and H AMILTON, Circuit Judges.
  E VANS, Circuit Judge. During 2008, federal agents got
wind of the fact that someone using a certain Yahoo!
account was trading in child pornography and bragging,
online, about molesting children. That someone turned
out to be John Mantanes, a dentist in his late 40s who
ran his own dental clinic in Mt. Prospect, Illinois.
 In January of 2009, agents executed a search warrant at
Mantanes’ home. The search uncovered some 1,380 images
2                                               No. 10-1590

and 141 videos of children engaged in sexually explicit
conduct. They portrayed children engaged in sexual
intercourse, bestiality, masturbation, and sadistic and
masochistic conduct. Here’s a sampling of some of the
worst images found on Dr. Mantanes’ computer:
    One image depicts a female infant on her stomach
    with her genitals exposed and a sharpie marker in-
    serted into her anus;
    One image depicts a close up of an infant female’s
    genitals. The infant’s genitals are pierced with a
    needle. Adult fingers are spreading the infant’s vaginal
    area. A caption at the top of the photograph reads
    “Two Years Little Girls Tortured with Needle”;
    One image depicts a naked prepubescent female child
    bound by a rope around her legs, waist and arms. A
    handkerchief is tied around the girl’s face, covering
    her mouth. A sharpie marker is inserted into
    her vagina;
    One image depicts an adult male’s penis urinating on
    a naked prepubescent female. The child is sitting,
    with her legs spread apart, in a bathtub and the
    adult male is standing over her;
    A video, entitled “Kiki crying in pain while being
    ass fucked” depicts a young female child screaming in
    pain as she is being raped.
  Also among the pictures Mantanes traded online were
non-explicit photos of his three daughters, including
one picture of his sleeping baby daughter with a sign
reading “no limits” displayed next to her. Mantanes later
No. 10-1590                                                      3

explained that the sign meant that there were “no limits”
on what the receiver of the picture could do to the girl.
  Mantanes was subsequently indicted on four counts
of receiving, and three counts of possessing, child pornog-
raphy. Pursuant to a written plea agreement, he pled
guilty to one count of receiving child pornography. The
other counts were dismissed. With several adjustments,
some up and one down, the parties agreed that Mantanes’
advisory guideline range was 210 to 262 months. The
statute, however, capped the stiffest possible sentence
at 240 months. The government argued for the maxi-
mum sentence; the defense for the 60-month mandatory
minimum. The district judge, who noted that he “lost
sleep over the case,” imposed a 210-month sentence.
Today, we resolve Mantanes’ appeal from the sentence
he received.
  Mantanes argues that the judge failed to properly
consider the 18 U.S.C. § 3553(a) factors, thereby com-
mitting procedural error.1 Mantanes also argues, relying



1
    Section 3553(a) reads:
      Factors to be considered in imposing a sentence. The court
      shall impose a sentence sufficient, but not greater than
      necessary, to comply with the purposes set forth in para-
      graph (2) of this subsection. The court, in determining the
      particular sentence to be imposed, shall consider—(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
                                                     (continued...)
4                                                    No. 10-1590

on United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010), that
the guidelines for this type of crime are substantively
unreasonable and the judge abused his discretion when
he imposed the 210-month term. We review the claims
of procedural error de novo, United States v. Corson, 579
F.3d 804, 813 (7th Cir. 2009), and the sentence imposed
for an abuse of discretion. Cf. United States v. Coopman,
602 F.3d 813, 819 (7th Cir. 2010).
  A district court need not discuss all the § 3553(a) factors,
but it must give them meaningful consideration. United
States v. Williams, 425 F.3d 478, 480 (7th Cir. 2005). Here,
the judge considered many of the factors, stating at sen-
tencing:
      “[Y]ou are being convicted of having the images
      that you had, which is 1380 images and 141 videos.
      And just think about that. Most people don’t have
      140 of their own personal movies at home. You had
      141 child pornography videos of the worst kind.
      And so any idea of a five-year sentence I think is
      ridiculous, would seriously deprecate the seriousness


1
    (...continued)
       offense, to promote respect for the law, and to provide just
       punishment for the offense; (B) to afford adequate deter-
       rence 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 estab-
       lished for [the offense] . . . .
No. 10-1590                                                 5

    of this offense. . . .To me, that is a dangerous situation
    for the general public. . . . I have to look at these
    personal characteristics of you. I certainly have to
    deter this type of behavior. . . . I think this needs to
    be deterred. It needs to be treated. I think the public
    needs to be protected from these type of child pornog-
    raphy activities on your part which were just pro-
    lific. . . . And so taking all of that into consideration,
    I believe the only appropriate sentence is to sentence
    you to a total term of 210 months on Count 1.”
It is clear from what we just quoted, as well as from
the entire sentencing transcript, that the experienced
district judge here adequately considered the § 3553(a)
factors—he explicitly mentions his consideration of the
seriousness of the offense, the need for deterrence, the
need to protect the public, Mantanes’ personal charac-
teristics and the need for sex offender treatment.
  Still, Mantanes argues that in his consideration of the
§ 3553(a) factors the judge did not properly consider
testimony by Mantanes’ expert witness, Dr. Richard
Carroll, that Mantanes was unlikely to re-offend and
suffered from major depressive disorder.
  At the sentencing hearing, Dr. Carroll opined that
although Mantanes is a pedophile, hypersexual, and
suffering from major depressive disorder, he has a
lower risk of recidivism than the typical person con-
victed of a child pornography offense. During cross-
examination, however, Dr. Carroll admitted that some
of the testing on which he relied is contradicted by
other literature which he did not include in his report, and
6                                                No. 10-1590

that there were limitations on another of the tests that
he used. Further, Dr. Carroll’s testimony was con-
tradicted by the writings of another doctor, who
Dr. Carroll readily admitted was one of the best in the
field, as well as by testimony Dr. Carroll himself gave
in another case.
  In considering Dr. Carroll’s testimony, the judge ad-
mitted that he found some of the content of the report
troubling, as it calls into question some of Dr. Carroll’s
conclusions. Specifically, the judge stated:
    I find ultimately the report, while I appreciate the
    candor of the report, troublesome to you because of
    the fact of the fantasies that are included in here
    are just some very, very troublesome fantasies. . . . I’ve
    had child pornography cases where somebody
    looked at child pornography because of incidental
    accidental curious natures, but never because of
    being a pedophile, never because of this new
    hypersexual category that Dr. Carroll mentions.
    I think this needs to be deterred. It needs to be
    treated. I think the public needs to be protected from
    these types of child pornography activities on your
    part which are just prolific.
  Given these comments, as well as the evidence intro-
duced in contradiction of Dr. Carroll’s testimony, it is
clear that the judge read Dr. Carroll’s report and consid-
ered his testimony, but overall found the doctor’s conclu-
sion that Mantanes was unlikely to re-offend ques-
tionable in light of the evidence presented. Further, the
judge found that the content of the report suggested
No. 10-1590                                                7

that Mantanes was a pedophile with continuing urges,
and that given these facts, the § 3553(a) factors of de-
terrence, treatment, and public protection called for a
within-guideline sentence.
  In terms of Dr. Carroll’s diagnosis of Mantanes as
suffering from major depressive disorder, the judge
clearly considered this as well. At the sentencing, he
referred to Mantanes’ depressed condition repeatedly,
finally concluding:
    To the extent that [your child pornography activities]
    were generated by your depressed condition, which
    I do not for one moment dispute, I will take that into
    consideration by the range of the guideline sen-
    tence that I will impose, but I don’t think for a
    second that any of the matters that have been
    brought to my attention or the Dr. Jekyll/[Mr.] Hyde
    nature of this offense, the fact that you, number one,
    are smart, have gotten good grades, made it
    through dental school, had a dental practice, were
    married, had three children in any way justifies
    some type of non-guideline sentence in this case.
  The judge considered Mantanes’ depressed condition,
as well as the other unique characteristics of Mantanes
as an individual and offender when handing down his
sentence, and in the end concluded that these factors,
while supportive of a sentence at the bottom of the guide-
line range, did not provide enough mitigation to sup-
port a below-guideline sentence. Therefore, we have no
trouble concluding that the judge gave meaningful con-
sideration to Dr. Carroll’s report and the § 3553(a) factors,
8                                                 No. 10-1590

and thus that no procedural error was committed
during the sentencing hearing.
  Mantanes also argues that his sentence was sub-
stantively unreasonable. He urges us to follow the rea-
soning of the Second Circuit in Dorvee. But Dorvee is
easily distinguishable. In remanding for resentencing in
Dorvee, the Second Circuit expressed concern that the
sentencing judge assumed that the defendant was likely
to assault a child (although he was convicted of a non-
contact offense), and that this assumption motivated
the sentencing judge to place “unreasonable weight” on
the need to protect the public. Dorvee, 616 F.3d at 183.
  Although Mantanes was also convicted of a non-
contact offense, the judge here did not place unrea-
sonable weight on the need to protect the public from
Mantanes; it was just one of the many factors con-
sidered at sentencing. In evaluating this factor, the
judge found it telling that Mantanes’ own expert con-
cluded that he was a pedophile with ongoing fantasies.
The judge also received victim impact statements
from some of the then-children pictured in the porno-
graphic images traded by Mantanes, as well as a state-
ment from Mantanes’ estranged wife about the on-going
damage his behavior has caused her family.
 Mrs. Mantanes continues to fear for her children’s
physical and psychological safety, writing:
    [E]very day I cry when I think our children’s images,
    our angels, are being morphed by depraved, evil,
    perverted people. I wonder when I am stopped at the
    stop light if the man in the next car is one of them. . . .
No. 10-1590                                             9

   that one day he will recognize the children and try
   to snatch them. . . . Does anyone know what it is like
   to be hurt, shocked, betrayed, ripped apart, and then
   to pretend to be strong and calm, while your child
   night after night cries and begs you to hold her
   hand until she can fall asleep?
  Clearly, Mantanes has caused considerable harm, both
to strangers and to his family, and it was reasonable for
the judge to conclude that the public needed protec-
tion from him. True, the judge put considerable weight
on this factor, but the weight was not undue.
  Further, the Second Circuit in Dorvee found procedural
error in the application of the guidelines, and con-
cluded the error colored the sentencing in such a way as
to bolster a finding of substantive unreasonableness
as well. Specifically, the initial PSR guideline range for
Dorvee was 262 to 327 months, while the statutory maxi-
mum was 240 months, thereby making the guideline
a point of 240 months, not a range. However, it ap-
peared that although the sentencing judge understood
that the maximum available sentence was 240 months,
he mistakenly believed that the guideline range was
still 262 to 327 months. As a result, the Second Circuit
felt that he worked from the erroneous assumption that
it was a “forgone conclusion” that a 240-month sen-
tence would be upheld on appeal because it was
“relatively far below” the initial guideline range and so
he may not have employed a reasonably individualized
application of the § 3553(a) factors. Id. at 184.
  In contrast, there was no procedural error in Mantanes’
sentencing, and as discussed, the judge employed an
10                                             No. 10-1590

eminently reasonable and extremely individualized
application of the § 3553(a) factors in arriving at
Mantanes’ sentence. Further, Mantanes was sentenced to
210 months, which was both at the bottom of the agreed-
upon guideline range and below the 240-month statu-
tory maximum. This makes our case quite different
from the situation before the court in Dorvee.
  The Dorvee court, after noting the sentencing errors
we have mentioned, went on to observe that the
errors “were compounded by the fact that the district
court was working with a Guideline that is funda-
mentally different from most and that, unless applied
with great care, can lead to unreasonable sentences that
are inconsistent with what § 3553 requires.” Id. at 184.
  The Second Circuit explained that section 2G2.2
was not the product of the Sentencing Commission’s usual
empirical studies and independent policy judgment.
Instead, the applicable guideline ranges have escalated
through a series of congressional directives, many of
which the Sentencing Commission has actively opposed.
Id. at 184-86. The result, as described by the Second
Circuit, is a guideline “cobbled together” that “routinely”
produces guideline ranges “near or exceeding the statu-
tory maximum, even for run-of-the-mill cases.” Id. at
186. Whether one agrees or disagrees with the concerns
expressed by the Second Circuit, it is ultimately for Con-
gress and the Commission to consider these concerns.
Having said that, however, those concerns can certainly
be taken into account by district judges when exer-
cising their sentencing discretion under the now advisory
guidelines.
No. 10-1590                                              11

  One last point. Unlike the Second Circuit, we apply a
presumption of reasonableness to a within-guideline
sentence, and it is up to the defendant to overcome this
presumption. Coopman, 602 F.3d at 819; United States v.
Blue, 453 F.3d 948, 952 (7th Cir. 2006). In this case, given
the obvious care and individualized application of
§ 3553(a) with which the judge approached the sen-
tencing, the lack of any colorable procedural error, and the
fact that the sentence imposed was at the bottom of the
undisputed guideline range, we cannot conclude that
Mantanes has overcome the presumption of reasonable-
ness.
  For the foregoing reasons, the judgment of the dis-
trict court is A FFIRMED.




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