                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-4412


UNITED STATES OF AMERICA,

                Plaintiff − Appellee,

           v.

STEVEN RUSSELL HELTON,

                Defendant − Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.      Irene C. Berger,
District Judge. (5:12-cr-00134-1)


Argued:   December 11, 2014                 Decided:   April 2, 2015


Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by published opinion.       Judge Wilkinson wrote the
opinion, in which Judge Gregory and Judge Duncan joined. Judge
Gregory wrote a separate concurring opinion.


ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant. Lisa Grimes
Johnston, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee.   ON BRIEF: Mary Lou Newberger, Federal
Public Defender, David R. Bungard, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston,
West Virginia, for Appellant. R. Booth Goodwin II, United States
Attorney, William B. King, II, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia,
for Appellee.
WILKINSON, Circuit Judge:

       Appellant Steven Helton pled guilty to one count of knowing

possession       of    child     pornography         in    violation          of    18    U.S.C.

§§ 2252A(a)(5)(B) and 2252A(b)(2). He was sentenced to 60 months

in prison followed by a lifetime term of supervised release.

Helton    now    appeals.      The     question       presented        to    this    court      is

whether,    given       the    facts    of     this    case,      a    lifetime          term   of

supervised release is procedurally and substantively reasonable.

For the following reasons, we think it is and now affirm.

                                              I.

       In October 2010, Sergeant D.C. Eldridge, a member of the

West    Virginia       Internet       Crimes       Against     Children           Task    Force,

determined       that     a      computer      near       Beckley,          West     Virginia,

contained       several       child    pornography         videos       accessed         through

peer-to-peer          software    that       the    Task     Force          was    monitoring.

Sergeant Eldridge, with assistance from the FBI, identified the

subscriber to the IP address associated with the computer as

Barbie Helton of Beaver, West Virginia. On December 29, 2010,

investigators executed a search warrant on the Helton residence

where Ms. Helton lived with her son, Steven. As part of this

initial     search,       Sergeant       Eldridge         discovered         several       files

containing child pornography on Steven Helton’s computer.

       Defendant,        after     being      advised        of       his     constitutional

rights, gave a recorded statement to law enforcement, explaining

                                               2
that he regularly viewed adult and child pornography and would

download,     view,     and    then    delete      images,    and     then   return    to

download more images. Forensic investigators found a total of

961 individual images of child pornography on the hard drive of

the    computer,      although    only       42   were   actively     accessible      for

viewing    at    the    time     of    the    search.    In    the    course    of    his

interview, Helton admitted to downloading some of the images

onto his iPod for personal use, but denied trading or sharing

child pornography with any other users.

       Many     of    the     images     found      by   investigators         were   of

prepubescent         minors    engaged       in   sexual      acts,    exhibition      of

genitals, or bondage, and at least one depicted a child engaged

in sadistic or masochistic acts. Helton explained that he had

been sexually abused by his stepfather when he was a child, and

that he had sought treatment in the past but had been unable to

stop viewing child pornography. He also admitted that he had

been caught viewing child pornography while he was a juvenile in

foster care and that he had been removed from a foster family

for sexually abusing a three-year old when he was thirteen years

old.

       On June 12, 2012, a federal grand jury in the Southern

District of West Virginia issued a two-count indictment against

Helton    for    knowing      receipt    and      knowing     possession     of   child

pornography in violation of 18 U.S.C. §§ 2252A(a)(2), (a)(5)(B),

                                              3
and 2252A(b)(1)-(2). Helton pled guilty to one count of knowing

possession     of   child       pornography         in    violation       of   18    U.S.C.

§§ 2252A(a)(5)(B)         and     2252A(b)(2).             The     maximum      term     of

imprisonment      under   the     statute      is    ten     years.      See   18    U.S.C.

§§ 2252A(a)(5)(B), 2252A(b)(2). Under 18 U.S.C. § 3583(k), the

court must impose a term of supervised release of at least five

years and up to life for crimes under § 2252A.

      The    presentence        investigation            report,    prepared        by   the

probation office, recommended a Guidelines range of 78 to 97

months of imprisonment based on a total offense level of 28 and

a criminal history category of I. The district court adopted the

presentence investigation report, after thoroughly reviewing it

at   the    sentencing     hearing.      See        J.A.    168-72.       It   noted     the

statutory     maximum       and    walked       the        defendant       through       the

Guidelines     calculations.        As    the        trial       judge     explained,     a

violation of § 2252A(a)(5)(B) has a Base Offense Level of 18.

See id. at 170; see also U.S.S.G. § 2G2.2(a)(1). A two-level

enhancement was added for using a computer to search for and

access child pornography. In addition, two levels were added for

material that depicts a prepubescent minor under the age of 12

and an additional four levels for material portraying sadistic

or   masochistic    conduct.       Lastly,      a    five-level       enhancement        was

added because the offense involved 600 or more images. Helton

received      a     three-level          reduction           for         acceptance      of

                                          4
responsibility, bringing his total offense level to 28. Because

this was his first conviction, his criminal history category, as

noted, was I.

     At the sentencing hearing, neither party objected to the

Guidelines       calculation         included         in   the     presentence         report,

although the defendant provided a comment by way of additional

explanation that the majority of images were not sadistic or

masochistic in nature. See J.A. 158-59.                           The sentencing judge

noted objections from the defense regarding several of the more

onerous conditions of supervised release and agreed to remove

some of the more burdensome terms where not applicable to the

nature     and    circumstances             of       Helton’s      offense.          She   also

considered the factors listed in 18 U.S.C. § 3553(a) and heard

argument from both the government and defense counsel regarding

the appropriate sentence for Helton. See id. at 172-91. Helton

also made a statement directly to the court. See id. at 198-99.

At   the    conclusion          of    his    statement,           the    court       sentenced

defendant    to     a    term    of    60    months        imprisonment,         a    downward

departure    from       the   Guidelines         range,     and    a    lifetime      term   of

supervised release, comprised of a number of conditions specific

to the defendant, including treatment for both substance abuse

and psychosexual mental health.                  This appeal followed.




                                                 5
                                        II.

        This court reviews a sentence imposed by a district court

for reasonableness. See United States v. Booker, 543 U.S. 220,

261 (2005). Sentencing is the province of the district court and

in reviewing the chosen sentence, we consider only whether the

sentencing judge abused her discretion rather than whether this

court   would     impose   the   same   sentence    on     a    defendant    in   the

appellant’s position. See Gall v. United States, 552 U.S. 38, 51

(2007). This court will affirm a sentence when it is “within the

statutorily prescribed range and is reasonable.” United States

v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). Defendant contests

only his term of supervised release, arguing that the lifetime

term is procedurally and substantively unreasonable and should

be vacated.

       Even   though   the   Sentencing       Guidelines       are   now   advisory,

district courts “must consult those Guidelines and take them

into    account    when    sentencing.”       Booker,    543    U.S.   at    264.   A

sentence within the Guidelines range is presumed on appeal to be

substantively reasonable. See Rita v. United States, 551 U.S.

338, 347 (2007). Here, the lifetime term of supervised release

was within both the Guidelines range and the statutory maximum.

See 18 U.S.C. § 3583(k); U.S.S.G. § 5D1.2(b). However, that does

not end the inquiry. For a sentence to be procedurally sound, a

district judge must also consider the factors outlined in 18

                                         6
U.S.C. § 3553(a) and “articulate the reasons for selecting the

particular        sentence,    especially        explaining      why    [any]     sentence

outside     of    the     Sentencing   Guideline         range     better      serves    the

relevant sentencing purposes set forth in § 3553(a).” United

States v. Green, 436 F.3d 449, 456 (4th Cir. 2006).

                                            A.

      Helton       contends     that    his      lifetime     term       of     supervised

release is procedurally unreasonable because the district court

did   not     adequately       explain      why     it     chose       that     particular

sentence. However, we find that the sentencing judge carefully

and thoroughly explained the sentence at length.

      The district court walked through the calculation of the

Guidelines        range    carefully   at     the   sentencing         hearing,     during

which neither party objected. It noted that defense counsel had

asked for the court to consider that the majority of images did

not depict sadistic or masochistic conduct, even though counsel

did not object to the four-level enhancement for such images.

See   J.A.       158.   The   court    considered         arguments      made     by    both

parties      at    sentencing    concerning         the    § 3553(a)          factors    and

discussed the application of the factors in fashioning Helton’s

particular sentence.

      The district judge granted a downward departure from the

recommended term of imprisonment of 78 to 97 months, sentencing

Helton to 60 months in prison. See J.A. 199, 172. She explained

                                            7
that the sentence of 60 months followed by a lifetime term of

supervised release “provide[d] just punishment for the crime for

which [Helton] pled guilty” because it both “reflect[ed] the

seriousness      of   the      offense”     and         would    “deter      [Helton]         from

committing      criminal       conduct        in     the    future.”         Id.     at       206.

Importantly, the judge further explained that given Helton’s age

and lack of prior criminal convictions, a sentence of longer

than 60 months “simply was not necessary,” id., especially in

light    of    “the   fact      that    [he       would]        be    required     to     be    on

supervised release for life,” id. at 207-08. Although Helton’s

prison term is not directly at issue before this court, the

judge made clear that the length of the prison term and the

length of the supervised release term were linked. She was only

comfortable      with     the     downward          departure          for   the     term       of

imprisonment because she knew that Helton would be subject to a

lengthy term of supervised release.

      The     judge   also     gave    full       and    fair        consideration       to    the

§ 3553(a)      factors    that,       she   explained,           require     the    court       to

consider, among other factors, the “nature and circumstances of

the     offense,”       “the     history           and     characteristics              of     the

defendant,” and the need for the sentence imposed “to reflect

the seriousness of the offense, to promote respect for the law,

and to provide just punishment for the offense,” as well as “to



                                              8
provide the defendant with needed . . . medical care, or other

correctional treatment.” 18 U.S.C. § 3553(a); see also J.A. 173. *

     Although    the   court   must      base    the    sentence   on    an

individualized   assessment,    it       need   not    “robotically     tick

through” the § 3553(a) factors. United States v. Johnson, 445

F.3d 339, 345 (4th Cir. 2006). In crafting the sentence, the


     *
       Defense counsel argued before this court that the district
court’s consideration of the § 3553(a) factors focused primarily
on “the severity of [Helton’s] conduct, which is explicitly off
limits when it comes to consideration of the supervised released
term.”    Oral    Arg.   at    13:35.    We    disagree   with    this
characterization of the district court’s explanation. It is true
that 18 U.S.C. § 3583, which provides “factors to be considered
in including a term of supervised release,” 18 U.S.C. § 3583(c),
does not include “the need for the sentence imposed to reflect
the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense” or “the kinds of
sentences    available,”    18   U.S.C.    § 3553(a)(2)(A),    (a)(3).
Notably, however, the statute allows for consideration of the
factors listed in § 3553(a)(1): “the nature and circumstances of
the offense and the history and characteristics of the
defendant.”    18   U.S.C.   § 3553(a)(1);    see   also   18   U.S.C.
§ 3583(c). Here, we do not agree that the district judge focused
only on the severity of Helton’s conduct. While she did state
that she chose the 60 month sentence followed by a life term of
supervised release to “provide[] just punishment for the crime
for  which    [Helton]   pled    guilty”   and   to   “reflect[]   the
seriousness of the offense,” J.A. 206, she further noted that
she had considered “the nature and circumstances of [Helton’s]
offense, as well as [his] history and characteristics.” Id. She
specifically outlined how, in determining the proper sentence
and the conditions of supervised release, she had balanced his
youth and lack of criminal history against his admitted cycle of
downloading and deleting child pornography, the period of months
over which he had collected the images, his mental health
history, and his admitted history of viewing child pornography
and his sexual abuse of a three-year old child in foster care.
See id. at 207.



                                     9
judge      took    note     of    both     individual      characteristics             of    the

defendant and the particular offense conduct in this case. She

considered        that    Helton    was    only    “21   years     old   and       appearing

[before the court] on [his] first criminal conviction.” J.A.

206. The court also considered Helton’s extensive “mental health

issues and [his] admissions to having viewed child pornography

as   a    child”    in     determining      “the    need     for      this       sentence     to

provide [Helton] with medical care and corrective treatment in

the most effective manner.” Id. at 207.

         On the other hand, the judge explained that while “only 42

image      files    of     child     pornography         were    located          in   active

folders,” the defendant had “engaged in repetitive cycles of

downloading images, deleting them, and then searching for more,”

over the course of seven months, which is exactly the “type of

conduct [that] provides the market for child pornography which .

. . often results in the abuse of minors.” Id. at 206-07. She

also took notice of his admission that he had “sexually abused a

three-year-old” when he was previously in foster care. Id. at

207.

         Furthermore,       the    judge    took    into     account         a    number     of

individualized           considerations      in    shaping      the    conditions           that

attach to defendant’s term of supervised release. Considering

the defendant’s admission to significant alcohol and marijuana

use, id. at 197, and noting that he did not have “a low risk of

                                             10
future     substance       abuse,”      id.    at        200,       she   required        him    to

participate in a substance abuse treatment program. She also

required Helton to “submit to a psychosexual evaluation by a

qualified mental health professional,” “complete [any resulting]

treatment      recommendations,”           and           “take      all        medications      as

prescribed.” Id. at 201. She also imposed a number of conditions

regarding his status as a sex offender and limiting his ability

to interact with minors. Id. at 201-04.

     However, the district court also, in response to a request

from defense counsel, removed several of the more onerous terms

of supervised release, finding them unnecessarily harsh in light

of the circumstances of the case. Id. at 165-68. The judge noted

that the “terms and conditions of supervised release should have

some reasonable basis given the facts and circumstances of the

offense such that they accomplish the purposes that are intended

by supervised release.” Id. at 166. Finding that there was “no

basis    in    this      particular       case,”             she    declined       to     require

“defendant      to    carte     blanche       afford          access      to    his     financial

information”         unless    there    “is    some          indication         that    there    is

something      [such      as   a   computer         or       cell    phone      with     internet

capacity] purchased that should not have been.” Id.

     She      also    declined     to    impose          a    condition        preventing       the

defendant from purchasing cameras, explaining that there was “no

evidence      in   this    case    that       the    defendant            took    pornographic

                                              11
photos or videos of children.” Id. at 167-68. Despite objection

from defense counsel, she kept in place the condition preventing

defendant from purchasing or owning a cell phone with internet

capability, explaining that it was “appropriate given the facts

and circumstances of this case.” Id. at 167. Defense counsel

repeatedly requested a fifteen year term of supervised release,

but the judge rejected that in favor of a longer term coupled

with a downward departure in the length of Helton’s term of

imprisonment. See id. at 176, 190, 208.

      In light of this lengthy explanation, we find no procedural

error in what the district court did. The Guidelines range was

properly calculated. The term of supervised release was within

the     Guidelines       range   and     within    the     permissible        statutory

authorization. The defendant received a downward departure in

his prison term, which was clearly linked to a longer term of

supervised release. The defendant wants additional explanation,

specific to the term of supervised release, but we find the

district    court        satisfactorily     explained         both   pieces    of    the

sentence at great length.

      We do not dispute that there must be sufficient explanation

for a sentence to be procedurally reasonable. But we take no

issue    with     what    the    district      court   did     here.   We     find   the

district    court’s       thorough      explanation      sufficient    on     both   the

sentence     as    a     whole    and    the    term     of    supervised      release

                                           12
specifically.         To    require       more    explanation            would   unnecessarily

intrude upon the district court’s primary and unique role in the

sentencing process.

                                                 B.

      Helton also contends that his lifetime term of supervised

release is substantively unreasonable because it is longer than

necessary to further the goals of supervised release itself and

was not justified by Helton’s offense. See Appellant’s Br. at

12.   We   disagree.         A   lifetime         term       of    supervised         release     is

authorized       by    statute       and     within          the    Sentencing        Guidelines

range.     See    18       U.S.C.    §     3583(k)      (“[T]he          authorized      term     of

supervised release for any offense under section                                 . . . 2252A .

. . is any term of years not less than 5, or life.”); see also

U.S.S.G.     §    5D1.2       (“[T]he       length       of       the    term    of   supervised

release . . .          may be up to life, if the offense is . . . a sex

offense.”).        Furthermore,             the       U.S.         Sentencing         Commission

specifically          included       an     advisory          policy       statement        in    the

Guidelines       Manual       that       suggests       it    is     the    judgment        of    the

Sentencing       Commission         that    in    the    case       of     sex   offenses        “the

statutory maximum term of supervised release is recommended.”

      District courts are permitted to consider a wide variety of

information during the course of a sentencing proceeding. See

Alleyne    v.    United       States,       133    S.    Ct.       2151,    2163      n.6    (2013)

(“[J]udges       may        exercise       sentencing             discretion       through        ‘an

                                                 13
inquiry broad in scope, largely unlimited either as to the kind

of information [they] may consider, or the source from which it

may come.’”) (alteration in original) (quoting United States v.

Tucker,    404    U.S.    443,    446   (1972)).       Here,     the    district     judge

considered       the   defendant’s      lengthy        history    of     viewing     child

pornography,       his    admitted      repetitive        pattern       of    downloading

material, deleting it, and seeking out more. She also considered

that he admitted to abusing a three-year old when he was a minor

in foster care and that he had sought help for his compulsion to

view child pornography but had been unable to stop.

     Furthermore,         the     district        court     granted          defendant     a

downward variance in his prison term, remarking that she was

comfortable doing so because he would be subject to a lengthy

term of supervised release. It would be almost unprecedented to

credit a defendant’s challenge to a sentence as substantively

unreasonable when the district court actually reduced the term

of   imprisonment         below     the      recommended         Guidelines         range.

Moreover,    the       court     modified        the   conditions        of    supervised

release, alleviating some of the more burdensome requirements

that she thought inappropriate for Helton given the offense and

circumstances of this case and this defendant.                         Helton can still

petition    for    a     modification       or    termination       of       his   term   of

supervised    release      at    any    time     after    one    year    of    supervised

release, provided it is justified by his conduct and in the

                                            14
interest     of    justice.    See     18    U.S.C.    §     3583(e)(1);     U.S.S.G.

§   5D1.2   n.5.     Given    these    circumstances,        we     cannot   find   the

district    court’s     conclusion         unreasonable      that    a   lifetime    of

supervised release was necessary to deter defendant, protect the

public from additional crimes by him, and provide him with the

mental health care and necessary corrective treatment he needs.

      Trial courts have significant discretion in the sentencing

process, and we see nothing in this case to suggest that this

discretion     was    abused    in     a    manner    that    would      render     this

sentence     substantively        or        procedurally       unreasonable.         The

judgment is accordingly affirmed.

                                                                             AFFIRMED




                                            15
GREGORY, Circuit Judge, concurring in the majority opinion:

         I commend the district court’s exercise of its discretion

in fashioning Steven Helton’s sentence in this very difficult

case.         Five years in prison is well enough for the 21 year-old

with         no   prior    criminal       convictions,          who    was    physically       and

sexually          abused    by    his    stepfather,        who       grew    up    in    multiple

foster care homes since the age of six, and who was caught with

42 image files of child pornography on his computer. 1                                   J.A. 195,

206. 2       And, as the majority notes, the district court imposed the

supervised release portion of Helton’s sentence in conjunction

with a downward variance from the applicable advisory Guideline

range.            The     district       court     displayed          courage       in     varying

downward,          and      in    crafting        an      appropriate,         individualized

sentence.

                                                 I.

         The      district       court    chose       a   sentence       of    60    months     of

imprisonment followed by a lifetime term of supervised release

for      Helton’s          knowing       possession        of     child       pornography       in

violation of 18 U.S.C. § 2252(a)(5)(B) and 2252A(b)(2).                                     Helton

         1
       As the majority notes, only 42 of the 961 image files
recovered by forensic investigators from Helton’s computer were
actively accessible for viewing. It appears the remaining files
were thumbnail-sized images automatically generated by the
Windows operating system.
     2
       Citations to the J.A. refer to the parties’ Joint Appendix
filed in this case.    Specifically, the facts referenced herein
are contained in the sentencing hearing transcript.


                                                 17
appeals only the supervised release portion of his sentence.                        I

agree with the majority that the district court committed no

procedural error by adequately explaining why it thought this

particular       punishment        sufficient      to    meet     the     goals     of

sentencing.

       As is well known, reasonableness includes both procedural

and substantive components.                See United States v. Carter, 564

F.3d   325,     328   (4th    Cir.   2009).        “Procedural     errors     include

‘failing to calculate (or improperly calculating) the Guidelines

range, treating the Guidelines as mandatory, failing to consider

the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen

sentence – including an explanation for any deviation from the

Guidelines range.’”           Id. (quoting Gall v. United States, 552

U.S. 38, 51 (2007)).           Above all, the district court “must make

an   individualized        assessment      based    on   the    facts    presented.”

Gall, 552 U.S. at 50.          In other words, the district court should

“consider every convicted person as an individual and every case

as a unique study in the human failings that sometimes mitigate,

sometimes      magnify,      the   crime    and    the   punishment      to   ensue.”

Carter, 564 F.3d at 328.

       Among    the   human    failings      the    district     court    took    into

account at sentencing was that Helton’s father abandoned him as

a baby.        J.A. 195.      His mother suffered various mental health

                                           18
problems.              J.A.    195.       When    Helton       was       six    years       old,    his

stepfather physically and sexually abused him and his sister.

J.A.       195.         Both     were    placed       with     an    aunt       who        drank    and

physically abused the children.                         J.A. 195.              Helton was then

removed       to       foster     care,       where    he    was     found        viewing       child

pornography.             J.A. 195.           It was during this time that Helton

also admits he sexually abused a minor child.                                  J.A. 195.           When

he was fourteen, Helton attended a mental health/sex offender

treatment facility for two and a half years.                                   J.A. 195.           Next,

he   moved        to    a     facility       called    the   Burlington           United      Family

Methodist         Services,       and    things       started       to    look       up;    while    at

Burlington,            Helton     obtained       his     GED     and       even       enrolled       in

Fairmont      State           College.        J.A.     195-97.           He    withdrew        before

completing         the        first    semester,       however,          and    at    the     age    of

eighteen returned to his mother’s home. 3                           J.A. 196-7.            He became

his disabled mother’s caretaker and began abusing alcohol and

other drugs himself.                   J.A. 196-97.          He was nineteen when the

police caught him in possession of child pornography.

       It     is       against        this    backdrop       that        the    district           court

emphasized that it was careful to sentence Helton “only for the


       3
       According to Helton, upon matriculating he was                                 told he had
not completed the requisite financial aid forms.                                      Without any
adult assistance to navigate the system, and having                                   “graduated”
from foster care, he was forced to withdraw from                                      college and
return to his mother’s residence.


                                                 19
offense to which [he] pled guilty.”                  The court explained that it

chose a sentence “sufficient to protect the public . . . and to

avoid    unwarranted       disparities        in    sentencing      of    defendants      of

similar backgrounds and similar violations.”                        In doing so, the

court balanced Helton’s age and lack of criminal convictions

against    his      engaging     in    “repetitive      cycles      of    downloading,”

which “provides the market for child pornography” and “often

results in the abuse of minors.”                   In the end, the district court

decided    “a       sentence    of    incarceration        longer    than       60    months

simply    is    not    necessary       to    meet    the   goals     of    sentencing,”

especially in consideration of the lifetime term of supervised

release.        The    court    further      “considered      the    need       for    th[e]

sentence       to     provide        . . .    medical       care     and        corrective

treatment,”         leading     to    the     special      conditions          of    release

including participation in medical evaluations and treatment.

     There      is    no   doubt      that   this    explanation,         following      the

district        court’s        painstaking          recollection          of        Helton’s

unfortunate childhood, was sufficiently individualized to meet

the requirements of procedural reasonableness.



                                             II.

     Helton’s appeal of the substantive reasonableness of his

lifetime term of supervised release is a closer question.                                 As

the majority rightly recognizes, a district court enjoys wide

                                             20
discretion in sentencing.               The district court “is in a superior

position to find facts and judge their import,” United States v.

Diosdado-Star, 630 F.3d 359, 366 (4th Cir. 2011), but appellate

courts nevertheless play an important role in reviewing whether

an   abuse      of    that       discretion        has    occurred.          In    reviewing

substantive reasonableness, we measure the sentence against the

statutory sentencing factors while “tak[ing] into account the

totality of the circumstances.”                    Gall, 552 U.S. at 51; see also

United    States      v.   Montes-Pineda,           445   F.3d       375,   378    (4th     Cir.

2006).

     Helton’s         burden      on   appeal      is     a    difficult     one       to   meet

considering that a lifetime term of supervised release is indeed

within    the    advisory         Guidelines        range      and    the    maximum        term

authorized       by    statute.            See      U.S.S.G       § 5D1.2;        18    U.S.C.

§ 3583(k).       Ultimately the district court was faced with the

history and characteristics of someone who admitted to having

previously      abused       a    child    and      who       furthermore     reverted           to

viewing    child      pornography         after     having      completed     years         of    a

residential sex offender treatment program.                            J.A. 195.            While

there is a continuing debate on the linkage between possession

of child pornography and sexual abuse of minors, it was not

improper for the district court to consider the need “to afford

adequate deterrence,” id. § 3553(a)(2)(B), and “to protect the

public       from      further         crimes        of        the     defendant,”           id.

                                              21
§ 3553(a)(2)(C).     In the totality of the circumstances, it is

fair to say that Helton will benefit not from more time in

prison, but from long-term supervision and compliance with drug

dependency and psychosexual treatment programs.          Therefore, even

though I regret that Helton can see no redemptive light at the

end of his long road to recovery, I cannot say the district

court abused its discretion.

     It is this same ambivalence, however, about offenders like

Helton never being able to fully rejoin society as rehabilitated

individuals that leads me to warn against undue deference to

what are only advisory Guidelines.          When we begin to accept

these   Guidelines    as   irrefutable    truths,   we   tend   to     give

ourselves to overgeneralizations like that made by the majority

when it writes:      “It would be almost unprecedented to credit a

defendant’s   challenge      to   a      sentence   as     substantively

unreasonable when the district court actually reduced the term

of imprisonment below the recommended Guidelines range.”             To the

contrary, it can be unreasonable for a twenty-one year old with

no prior criminal convictions to spend five years in prison even

when the Guidelines advocate for a minimum term of six and a

half years.   And it can be unreasonable for that young man to

have to ask his probation officer for permission to purchase a

toy when, some great day later in his lifetime of supervision by

the government, he becomes a grandparent.

                                  22
      The child pornography Guideline has been recognized as an

“eccentric Guideline of highly unusual provenance which, unless

carefully     applied,       can   easily    generate        unreasonable    results.”

United States v. Dorvee, 616 F.3d 174, 188 (2d Cir. 2010).                           For

example, a defendant convicted of distributing child pornography

over the Internet but who has never had any contact with a minor

can receive a greater sentence than an individual who seeks out

a   minor   online,     arranges      a   meeting,      and    actually     abuses   the

child.      See id. at 176, 187.                 The Guideline also frequently

punishes first time offenders with the same severity as more

culpable     offenders.        This    is   because         several   of   the   § 2G2.2

enhancements of a defendant’s base offense level are broadly

defined and present in nearly all Internet child pornography

cases, like an enhancement for using a computer.                            See, e.g.,

United States v. Burns, No. 07 CR 556, 2009 WL 3617448, at *7

(N.D. Ill. Oct. 27, 2009) (“[M]ost of the enhancements provided

for   in    § 2G2.2    are    of   little        use   in    distinguishing      between

offenders.”).         Statistics show that in non-production cases in

fiscal year 2013, a two-level enhancement for using a computer

applied in 95% of cases, a two-level enhancement for involvement

of a child victim under the age of 12 (that is, a prepubescent

minor) applied in 96% of cases, and a five-level enhancement for




                                            23
600 or more images applied in 79% of cases. 4         Such realities have

led the Sentencing Commission to conclude that § 2G2.2 “places a

disproportionate emphasis on outdated measures of culpability,”

resulting   in “penalty    ranges    [that]    are   too    severe   for   some

offenders and too lenient for other[s].” 5

     These limitations are the result of the Guideline having

been “developed largely pursuant to congressional directives,”

as opposed to the Sentencing Commission’s expertise.                    United

States v. Grober, 624 F.3d 592, 608 (3d Cir. 2010); see also id.

(“[T]o say that the final product is the result of Commission

data,    study,   and    expertise    simply    ignores      the     facts.”).

Congress    has   been   “particularly    active”      in     directing    the

Commission to increase base offense levels and impose various

enhancements, which has resulted in a dramatic rise in penalties

over the years. 6   These changes have taken place in the face of



     4
        U.S. Sentencing Comm’n, Use of Guidelines and Specific
Offense     Characteristics     40-41   (2013),    available    at
http://www.ussc.gov/sites/default/files/pdf/research-and-publica
tions/federal-sentencing-statistics/guideline-application-
frequencies/2013/Use_of_Guidelines_and_Specific_Offense_Characte
ristics_Guideline_Calculation_Based_Revised.pdf.
     5
       U.S. Sentencing Comm’n, Federal Child Pornography Offenses
xvii       (2012),      available     at      http://www.ussc.gov/
sites/default/files/pdf/news/congressional-testimony-and-reports
/sex-offense-topics/201212-federal-child-pornography-offenses/
Full_Report_to_Congress.pdf [hereinafter Report to Congress].
     6
         U.S. Sentencing Comm’n, The History of the Child
Pornography      Guidelines      1    (2009),     available     at
http://www.ussc.gov/sites/default/files/pdf/research-and-publica
(Continued)
                                     24
resistance by the Commission, and in the form of Congress taking

the   unprecedented       step    of   directly    amending    the   Guidelines. 7

Thus,   like   the    former       crack     cocaine   Guidelines,      the   child

pornography    Guideline         “do[es]    not   exemplify   the    Commission’s

exercise of its characteristic institutional role,” which is to

propose penalties “base[d on] its determinations on empirical

data and national experience, guided by a professional staff

with appropriate expertise.”                Kimbrough v. United States, 552

U.S. 85, 108-09 (2007).             For, what the data actually shows is

that 70% of district court judges in 2010 thought the Guideline

too severe for crimes of possession. 8              And, in fiscal year 2013,

district courts imposed a sentence below the Guideline range in

718 of 1,626 non-production cases. 9

      This is why, when we talk about the slippery concept of

reasonableness,      we   should       be   cautious   of   presuming    that   the



tions/research-projects-and-surveys/sex-offenses/20091030_
History_Child_Pornography_Guidelines.pdf.
     7
        See Melissa Hamilton, The Efficacy of Severe Child
Pornography   Sentencing:   Empirical   Validity   or   Political
Rhetoric?, 22 Stan. L. & Pol’y Rev. 545, 556 (2011).
     8
       U.S. Sentencing Comm’n, Results of Survey of United States
District Judges January 2010 Through March 2010, Question 8
(2010), available at http://www.ussc.gov/sites/default/files/
pdf/research-and-publications/research-projects-and-surveys/
surveys/20100608_Judge_Survey.pdf.
     9
        U.S. Sentencing Comm’n, 2013 Sourcebook of Federal
Sentencing     Statistics,     Table      28,    available     at
http://www.ussc.gov/research-and-publications/annual-reports-
sourcebooks/2013/sourcebook-2013; see also id. app. A (defining
“Below Guideline Range with Booker/18 U.S.C. § 3553”).


                                            25
child       pornography       Guideline      –     as       well    as    the       Guideline    for

supervised          release     of   child       pornography             offenders      –     always

provides a reasoned departure point from which to calculate a

sentence.          Like much of the judiciary, the Commission does not

view    the     Guideline         this     way        for    a     defendant         like     Helton

convicted of a non-production offense.                             In fact, the Commission

has    asked       Congress     to   give     it      the    authority          to    amend    those

provisions resulting from the legislature’s directives. 10                                        It

believes       these      amendments        necessary            “to     better      promote     the

purposes       of    punishment       by     accounting            for    the       variations   in

offenders’          culpability      and     sexual          dangerousness.” 11               Though

recommended          in   2012,      these       changes         are     still       forthcoming.

Luckily, in the meantime, there are judges like Judge Berger who

understand         that   the     totality       of     the        circumstances        sometimes

requires       a     below-Guideline          term          to     ensure       a    sentence     is

substantively reasonable.




       10
        See Report to Congress, supra note 5, at 322.
       11
        Id. at xvii. The Commission is also considering revising
§ 5D1.2    so  that,   as   opposed   to   its   current blanket
recommendation of the statutory maximum for child pornography
offenders, it would actually “provide[] guidance to judges to
impose a term of supervised release . . . that is tailored to
[an] individual offender’s risk and corresponding need for
supervision. Id. at xix.


                                                 26
                                     III.

     We measure our humanity by the justice we mete to those

thought least deserving.        I join the majority in affirming the

district court, which I believe did an admirable job crafting an

individualized sentence.       Perhaps in the future, our Guidelines

will evolve to become truly proportional to the severity of our

crimes.    And perhaps then, a district court will not be in the

lamentable    position   of   having    to   balance   the   need   to   depart

downward     from   an   excessive     Guideline   term      with   an   entire

lifetime of supervision.




                                       27
