                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit Rule 206
                                            File Name: 07a0170p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                           X
                                     Plaintiff-Appellant, -
 UNITED STATES OF AMERICA,
                                                            -
                                                            -
                                                            -
                                                                No. 06-5579
              v.
                                                            ,
                                                             >
 ANDY CHERRY,                                               -
                                    Defendant-Appellee. -
                                                           N
                             Appeal from the United States District Court
                          for the Western District of Kentucky at Louisville.
                       No. 05-00093—John G. Heyburn II, Chief District Judge.
                                          Argued: March 9, 2007
                                    Decided and Filed: May 11, 2007
    Before: DAUGHTREY and ROGERS, Circuit Judges; OBERDORFER, District Judge.*
                                            _________________
                                                 COUNSEL
ARGUED: Madison T. Sewell, ASSISTANT UNITED STATES ATTORNEY, Louisville,
Kentucky, for Appellant. Michael R. Mazzoli, COX & MAZZOLI, Louisville, Kentucky, for
Appellee. ON BRIEF: Terry M. Cushing, Monica Wheatley, ASSISTANT UNITED STATES
ATTORNEYS, Louisville, Kentucky, for Appellant. Michael R. Mazzoli, COX & MAZZOLI,
Louisville, Kentucky, for Appellee.
                                            _________________
                                                OPINION
                                            _________________
         ROGERS, Circuit Judge. The Government appeals the below-Guidelines sentence that the
district court imposed on defendant Andy Cherry as a result of Cherry’s guilty plea to four counts
of distributing child pornography, nine counts of receiving child pornography, and one count of
possessing child pornography. The applicable Guidelines range called for a sentence of 210 to 262
months’ imprisonment. The district court, after considering the factors in 18 U.S.C. § 3553(a),
sentenced Cherry to 120 months’ imprisonment. Because the sentence is substantively reasonable,
we affirm the judgment of district court.



        *
          The Honorable Louis F. Oberdorfer, United States District Judge for the District of Columbia, sitting by
designation.


                                                        1
No. 06-5579           United States v. Cherry                                                 Page 2


         When FBI agents executed a search warrant at a North Carolina home on March 8, 2005, the
target of the investigation cooperated with federal authorities, informing the FBI that he had
received several e-mail messages containing child pornography from an e-mail address belonging
to Andy Cherry. When FBI agents executed a search warrant at Cherry’s place of business, they
retrieved from Cherry’s computer e-mails between Cherry and the North Carolina target; most of
the e-mails did not have text in the body of the e-mail, just attachments of images of child erotica,
child pornography, and adult pornography. Agents also discovered zip disks holding 28 child
pornography movies, 193 child pornography still images, seven sadistic images of child
pornography, and one sadistic child pornography movie. Agents also recovered the text of an online
chat conversation between Cherry and an individual going by the name of “The Zonka.” In the chat
text, Cherry described in graphic detail molesting his children and stated that he molested his sons
only while they were young and that it was “wild how you can get away with that before the age of
memory.” Cherry also discussed molesting his nieces, who were at the time 5, 7, 11, and 12 years
of age. As a result of the chat text, local child welfare authorities investigated Cherry’s alleged
abuse of his sons and nieces, but authorities eventually closed the case because of a lack of evidence
of abuse. Cherry denied having actually harmed any of the children and explained the claims made
in his end of the online conversation by describing how he met a woman online who claimed to have
been sexually abused by her father, The Zonka, and indicating that he had attempted to bait The
Zonka into talking about the abuse. However, the Probation Office did not find this explanation to
be credible.
        Cherry began seeing Dr. Mary Gannon for counseling in July 2005 and entered an inpatient
treatment center in November 2005. Cherry pleaded guilty to four counts of distributing child
pornography, nine counts of receiving child pornography, and one count of possessing child
pornography. Under U.S.S.G. § 2G2.2(a)(2), the base offense level was 22. The Probation Office
included the following enhancements: two levels under U.S.S.G. § 2G2.2(b)(2) because of the
depiction of prepubescent children under the age of twelve; five levels under U.S.S.G.
§ 2G2.2(b)(3)(B) because Cherry received a “thing of value” in exchange for his distribution of
images; four levels under U.S.S.G. § 2G2.2(b)(4) because of the sadistic nature of some of the
images; five levels under U.S.S.G. § 2G2.2(b)(5) because Cherry engaged in a pattern of activity
involving the sexual abuse of a minor; two levels under U.S.S.G. § 2G2.2(b)(6) because Cherry used
a computer to receive and distribute child pornography; and five levels under U.S.S.G.
§ 2G2.2(b)(7)(D) because the offense involved more than 600 images. The Probation Office applied
a three-level adjustment for acceptance of responsibility, resulting in a total offense level of 42.
Cherry’s criminal history category was I. The resulting sentencing range was 360 months to
imprisonment for life.
         Cherry’s sentencing hearing was held on March 17, 2006. Dr. Mary Gannon, Cherry’s
therapist, testified that Cherry began seeking treatment from her in July 2005 and had been to around
31 sessions. Dr. Gannon opined that Cherry suffered from a sexual disorder not otherwise
specified—“a maladaptive use of sexual fantasy and sexual behavior to self-regulate one’s mood and
use it as a coping strategy to deal with life stresses.” Dr. Gannon testified about Cherry’s childhood
sexual experimentation with other young boys when Cherry was about 9 or 10 and about Cherry’s
sexual relationship with a girlfriend when Cherry was in high school. These experiences, according
to Dr. Gannon, “seemed to have caught his attention and seemed to have been a major way to
regulate his mood.” Dr. Gannon also described the nature of sexual addiction and noted that the
anonymous nature of the internet can increase the chances of risk-taking behavior on the part of the
addict. Dr. Gannon stated that Cherry had taken responsibility for his actions and had progressed
in therapy. Regarding Cherry’s explanation for his online conversation with The Zonka, Dr. Gannon
explained that it was likely Cherry’s attempt to enhance the relationship with the woman he met
online and that Cherry’s discussions about abusing his own sons was a way for Cherry to get The
Zonka to share the same kind of information.
No. 06-5579           United States v. Cherry                                                   Page 3


        The district court also heard testimony from David Breeding, a therapist and approved
provider of sex offender evaluation and treatment services under Kentucky law. Breeding testified
that Cherry was in the lowest risk category for sexual offenders and that, in his opinion, Cherry was
not a pedophile. However, Breeding admitted that there were no models to ascertain the risk that
an offender will commit an internet offense.
        Maggie Schroeder, a family services clinician with the Kentucky Cabinet for Health and
Family Services, testified that the investigation into the allegations that Cherry abused his children
or his nieces was closed and that investigations by multiple government agencies uncovered no
evidence of abuse. When asked on cross-examination about the fact that Cherry had claimed to have
committed the abuse “before the age of memory,” Schroeder testified that children abused at an age
young enough that they would be unable to remember the abuse will often “act out” sexually as a
result of the abuse and that Cherry’s children did not act out in any way suggesting any abuse in
their pasts.
        The district court accepted all of the Probation Office’s recommended enhancements except
for the five-level enhancement for the alleged pattern of activity involving the sexual abuse of a
minor. The district court concluded that the evidence that Cherry abused his children or nieces was
not very strong and that Cherry’s online claims “certainly could have been just hype,” conclusions
that the Government does not challenge on appeal. The district court then calculated the relevant
Guidelines range applicable to an offense level of 37, rather than 42; the range under the Guidelines
was 210 to 262 months of imprisonment.
        The district court acknowledged that the applicable Guidelines range was a consideration in
determining the appropriate sentence. In discussing the seriousness of the crime, the district court
clearly recognized that the crime is serious, that offenders like Cherry enable the production of child
pornography, and that the seriousness of the crime is reflected in the harshness with which Congress
has chosen to treat it. The district court also noted the “unfortunate coincidence of technology and
latent desire, creating criminal conduct that never could have occurred . . . and that people who are
doing acts which we have deemed criminal would never have done them in different circumstances.”
However, the district court stated that this “unfortunate coincidence” did not change the fact that
those engaging in the trade of child pornography perpetuate the abuse of the children depicted in the
images. Regarding Cherry specifically, the district court stated that the number of images Cherry
downloaded was “relatively small compared to [other defendants], and the guidelines have sort of
a skewed measurement of those numbers,” because the pace of technology has made it much easier
to download a large number of images quickly. The district court also pointed out the “retail” nature
of Cherry’s activities—that Cherry’s trades were a “personal connection” and were not seemingly
in the nature of others engaged in wholesale trade using a file server. The district court concluded,
however, that the use of more primitive e-mails to engage in small-scale trade did not outweigh “the
aggravating factors inherent in the interactive nature of the one-on-one chat and e-mail exchanges.”
       Regarding the consideration of a need to protect society, the district court concluded that
Cherry was possessed with “self-knowledge” of his actions and presented little risk of reoffending.
The district court also discussed the need for education or corrective treatment. Noting that Cherry
would get little treatment in prison, the district court counted this factor in favor of a low sentence,
especially in light of Cherry’s demonstrated desire for treatment. The district court imposed a
sentence of imprisonment for 120 months, well below the bottom of the applicable Guidelines range,
but double the five-year mandatory minimum Cherry requested.
        The district court gave the Guidelines sufficient weight and reasonably weighed the factors
in § 3553(a) in imposing a sentence well below the Guidelines range in this case. In United States
v. Booker, 543 U.S. 220, 245 (2005), the Supreme Court held that the Sentencing Guidelines were
advisory. Accordingly, “a district court is permitted to vary from those guidelines in order to impose
No. 06-5579           United States v. Cherry                                                    Page 4


a sentence which fits the mandate of [§] 3553(a).” United States v. Collington, 461 F.3d 805, 808
(6th Cir. 2006). Our review is limited to whether the district court’s sentence is reasonable. United
States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005).
        The sentence in this case is both procedurally and substantively reasonable. The
Government does not argue on appeal that the sentence is procedurally unreasonable and we find
no legal basis on which to conclude that the sentence is substantively unreasonable, even though we
reviewing judges might have reasonably imposed a tougher sentence. We have held a sentence
substantively unreasonable “when the district court selects the sentence arbitrarily, bases the
sentence on impermissible factors, fails to consider pertinent § 3553(a) factors or gives an
unreasonable amount of weight to any pertinent factor.” Collington, 461 F.3d at 808 (internal
quotation marks omitted). The district court did none of these things in this case, however. Instead,
the district court reasonably applied the relevant § 3553(a) factors in imposing a ten-year sentence.

       Section 3553(a) provides, in relevant part:
       The court shall impose a sentence sufficient, but not greater than necessary to comply
       with the purposes set forth in paragraph (2) . . . . [And] 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 offense, 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 . . . the applicable
       category of offense committed by the applicable category of defendant as set forth
       in the guidelines;
       ...
       (6) the need to avoid unwarranted sentence disparities among defendants with similar
       records who have been found guilty of similar conduct; . . . .
        The district court reasonably considered the nature and circumstances of the offense and the
history and characteristics of the offender. 18 U.S.C. § 3553(a)(1). In particular, the court reasoned
that Cherry has “the understanding of a need to change and he has the ability to do so,” and that
Cherry’s efforts at rehabilitation were more extensive than those the district court usually sees in
offenders. The Government does not appear to take issue with the district court’s analysis in this
regard.
No. 06-5579               United States v. Cherry                                                               Page 5


        The district court also reasonably considered the need to afford adequate deterrence.
18 U.S.C. § 3553(a)(2)(B). The district court noted the importance of sending a message to
defendants like Cherry who somehow believe that their actions are not criminal. The prospect of
spending 10 years in prison is not something a potential offender would ignore, and the sentence
certainly constitutes a deterrent to Cherry. Although the Government maintains that the variance
“minimizes” Cherry’s conduct and, thus, that the sentence does not afford adequate deterrence, any
variance from the Guidelines arguably “minimizes” the conduct of conviction. However, the 120-
month sentence imposed, although below the applicable Guidelines range, can hardly be said to
“excuse” Cherry’s conduct.
        The district court also considered the need for the sentence imposed to protect the public
from Cherry. 18 U.S.C. § 3553(a)(2)(C). The district court reasoned, based on the testimony at the
sentencing hearing, that Cherry represents a low risk for reoffending. Although the Government
maintains that it is unknown whether the sentence will protect the public, the Government does not
take issue with this specific aspect of the district court’s reasoning.
        With respect to 18 U.S.C. § 3553(a)(2)(D), the district court stated at sentencing that Cherry
will not get the help he needs in prison and, therefore, a consideration of the need for the sentence
imposed to provide Cherry with needed treatment in the most effective manner supported a variance.
The Government agrees that the sentence “probably does provide [Cherry] with needed educational
or vocational training, medical care, or other correctional treatment in the most effective manner.”
        Importantly, the district court was well aware of the kinds of sentences available and the
relevant Guidelines range, and carefully considered the seriousness of the offense. 18 U.S.C.
§ 3553(a)(2)(A) & (a)(3) & (a)(4). The district court correctly calculated the relevant Guidelines
range, and the Government does not challenge that calculation. The district court properly applied
the appropriate enhancements under the Guidelines and concluded that the statutory minimum
sentence of five years was too lenient, establishing that the district court was well aware of the kinds
of sentences available and the relevant Guidelines range. Furthermore, the district court did not
simply dismiss the seriousness of Cherry’s crimes in imposing sentence, but rather stressed
repeatedly the need to punish those who create the demand for child pornography.
        We cannot agree with the Government’s contention that the sentencing court “ignored”
Cherry’s conduct. A below-Guidelines sentence does not ipso facto amount to “ignoring” or failing
to consider the conduct supporting the enhancements. To be sure, a set of facts that operates to
enhance a sentence simultaneously counsels against a variance. Such is the nature of an
enhancement. But it does not follow that the presence of an enhancement means that the crime is
so serious that a variance is inherently unreasonable. Such reasoning, however attractive, is
inconsistent with the advisory nature of the Guidelines mandated by Booker, in the wake of which
we have stated repeatedly that a below-Guidelines sentence is not presumptively unreasonable. See,
e.g., Collington, 461 F.3d at 808. Accepting the Government’s argument would effectively result
in such a presumption.
         The essence of the Government’s argument appears to be that the 120-month sentence
imposed here cannot be reasonable because it results in such a relatively low sentence—relative, that
is, to the Guidelines range of 210 to 262 months. Cherry is, in the Government’s opinion,1a run-of-
the-mill offender, and the variance in this case does not comport with § 3553(a)(2)(A) because
Congress and the Sentencing Commission have expressed their will through the Guidelines.
However, the Government’s argument regarding § 3553(a)(2)(A) would give too little effect to the

         1
            Section 3553(a)(2)(A) provides that “[t]he court shall impose a sentence sufficient, but not greater than
necessary . . . to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment
for the offense.”
No. 06-5579                United States v. Cherry                                                                   Page 6


parsimony provision of § 3553(a)—that the district court shall impose a sentence “sufficient, but not
greater than necessary,” to comply with § 3553(a)(2). The district court, moreover, concluded that
Cherry is, in a number of ways, unlike other defendants the district court has sentenced for similar
offenses. Thus, the issue is not whether the sentence is below the Guidelines, but whether, as it
pertains to this defendant and the offenses he committed, the sentence comports with the purposes
of § 3553(a)(2)(A). The district court imposed a 10-year sentence, double the mandatory minimum.
Such a sentence reasonably reflects the seriousness of the offense, promotes respect for the law, and
provides just punishment for the offense.
         It is true that the district court should not have considered the length of time covered by the
superseding indictment in imposing a variance. The district court, in its written explanation for
Cherry’s below-Guidelines sentence, noted that “the time frame charged in the Superseding
Indictment is relatively short.” Although some of the conduct in the indictment covers a brief period
of time, the sentencing memorandum Cherry submitted to the district court states that “[s]tarting in
about 2002 or 2003, Andy began to download child pornography.” In light of Cherry’s admission
that he had been downloading child pornography for several years, it is not clear why the district
court concluded that the short timeframe of the crimes to which Cherry pleaded guilty supported a
decision to grant a large downward variance. However, in light of the other reasons offered by the
district court for the sentence imposed, this error does not alone render the district court’s conclusion
unreasonable.
        In sum, the district court, in imposing a sentence 43% below the applicable Guidelines range,
stressed repeatedly the seriousness of Cherry’s offense, took into account the kinds of sentences
available (and concluded that the minimum was too lenient), considered Cherry’s willingness to get
help and his progress in counseling, and considered          Cherry as an individual entitled to an
individualized sentence below the Guidelines.2 Although we might have adhered to the Guidelines
or imposed a harsher sentence were we in the position of the sentencing court, our review is not de
novo and we cannot conclude that the sentence imposed by the district court is substantively
unreasonable.
         Our decision in United States v. Davis, 458 F.3d 491, 496 (6th Cir. 2006), does not require
a different result. In Davis, we rejected as unreasonable a sentence representing a 99.89% variance
from the bottom of the applicable Guidelines range, reasoning, in part, that the rationale for a
variance must be compelling in proportion to the extent of the downward variance. Our decision
in Davis that a variance of almost 100% was substantively unreasonable on the facts of that case
does not require the same result in the instant case involving a 43% variance supported by relevant
considerations under § 3553(a). The opinion in Davis highlighted the fact that the variance granted
in that case left “no room to make reasoned distinctions between Davis’s variance and the variances
that other, more worthy defendants may deserve.” Id. at 499. In contrast to Davis, the district court
in this case imposed a sentence that was double the mandatory minimum, leaving ample room to
sentence future defendants who may prove more deserving of a variance than Cherry. Moreover,
we had a difficult time concluding that the reasons for the district court’s variance in sentencing
Davis, such as age and length of time between the commission of the crime and the sentencing
hearing, were compelling enough to support an almost 100% variance. Thus, it is difficult to extract
from Davis an idea of how compelling perfectly legitimate reasons must be for a 43% variance or


         2
            Although the Government maintains that it was error for the district court to base its decision to vary from the
Guidelines on the fact that Cherry did not use a file server in committing his crimes, the record establishes that the
district court did not base its decision to impose a below-Guidelines sentence on the lack of a file-server. In its statement
of reasons for imposing the below-Guidelines sentence, the district court concluded that the mitigating factor of the lack
of a file server did not outweigh the aggravating nature of the one-on-one exchanges in which Cherry engaged. Whether
or not the lack of a file server is a mitigating factor is perhaps debatable, but because the sentencing decision in this case
was not based on such a consideration, we need not reach the merits of such an argument.
No. 06-5579               United States v. Cherry                                                             Page 7


how this court is to review the careful and reasoned decision of the district court. See United States
v. Buchanan, 449 F.3d 731, 740-41 (6th Cir. 2006) (Sutton, J., concurring) (“If the trial court
appreciates that the guidelines are advisory, fairly considers the 3553(a) factors in announcing its
sentence and   adheres to the other procedural requirements of a reasonable sentence, that should
suffice.”).3 Furthermore, this court in United States v. Husein, 478 F.3d 318 (6th Cir. 2007), upheld
a variance as large as the one in Davis based on the individual circumstances of that case,
highlighting the fact that the very nature of individualized sentencing makes it difficult for this court,
reviewing a well-reasoned decision by a district court with day-to-day expertise in sentencing, to
conclude that a sentence is unreasonable merely by looking at the extent of the variance. See also
United States v. Fuson, No. 04-3050, 2007 WL 414265 (6th Cir. Feb. 8, 2007) (affirming a sentence
of probation where the Guidelines called for a sentence of 24 to 36 months in prison based on the
specific facts of the case).
        Nor does this court’s recent decision in United States v. Funk, 447 F.3d 421 (6th Cir. 2007),
require reversal. In Funk, this court reversed a below-Guidelines sentence where the district court’s
decision was based on an “impermissible” policy disagreement with the Guidelines. Id. at 430.
However, this case is unlike Funk because the district court in this case did not simply conclude that
the Guidelines were of no use in calculating the sentence imposed, but rather concluded that the
Guidelines range resulted in a sentence greater than necessary to achieve the purposes in § 3553(a).
Although the district court in the present case commented on the evolution of technology and its
tendency to “skew” the numbers since it has become relatively easy to download large amounts of
pornography, the district court also stated that the Guidelines overstated the nature of Cherry’s
conduct as an individual. This one stray comment made during the sentencing hearing does not
establish that the district court sentenced Cherry based on an impermissible policy disagreement
with the Guidelines. As we have said in the context of a within-Guidelines sentence, “misstatements
of the district court’s sentencing task do not necessarily imply a reversible sentencing error.” United
States v. Bolden, 479 F.3d 455, 468 (6th Cir. 2007) (internal quotation marks omitted). “After
Booker, we review a sentence for reasonableness, that is, whether the district court’s sentence is a
reasonable application of Section 3553(a).” Davis, 458 F.3d at 510 (6th Cir. 2006) (internal
quotation marks omitted). To have a different rule that runs in favor of the Government in the case
of below-Guidelines sentences would be inequitable and would lead this court down the path of
micromanaging the sentencing process, which is not our role.
        The sentence imposed is reasonable in light of the factors in § 3553(a) for the reasons
articulated by the district court. “[S]entencing courts, not the Sentencing Commission, retain the
ultimate authority within reason to apply the 3553(a) factors to each criminal defendant.”
Buchanan, 449 F.3d at 741 (Sutton, J., concurring). The district court gave the Guidelines
considerable weight and the fact that the sentence imposed represents a substantial variance from
the Guidelines range does not alter the conclusion. Concluding otherwise risks putting us in
substantial tension with the imperative of the Supreme Court in Booker. The district court did not
“select[] the sentence arbitrarily, base[] the sentence on impermissible factors, fail[] to consider
pertinent § 3553(a) factors or give[] an unreasonable amount of weight to any pertinent factor.”
Collington, 461 F.3d at 808.
             For the foregoing reasons, we AFFIRM the judgment of the district court.




         3
          Although the sentence at issue in Buchanan was a within-Guidelines sentence and sentences falling outside
the advisory Guidelines range may be subject to closer review, the principles articulated by Judge Sutton regarding the
proper division of labor between the district courts and appellate courts regarding sentencing would appear to apply to
a below-Guidelines sentence as well.
