                          In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 06-2207
UNITED STATES OF AMERICA,
                                          Plaintiff-Appellant,
                              v.

WILLIAM P. SCHMITT,
                                         Defendant-Appellee.
                       ____________
         Appeal from the United States District Court
            for the Eastern District of Wisconsin.
          No.05-CR-181—J.P. Stadtmueller, Judge.
                       ____________
     ARGUED JUNE 5, 2007—DECIDED AUGUST 7, 2007
                     ____________


 Before EASTERBROOK, Chief Judge, and MANION and
WOOD, Circuit Judges.
  WOOD, Circuit Judge. William Schmitt pleaded guilty
to one count of possession of child pornography in viola-
tion of 18 U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(A). Every-
one agreed that, if the Sentencing Guidelines were to be
followed, his sentence would fall between 63 and 78
months’ imprisonment. Schmitt, however, argued that the
only reasonable sentence for him would be below that
range. At his sentencing hearing, he showed convincingly
that the overwhelming majority of defendants charged
with the same crime in the state courts covering the
same area as the Eastern District of Wisconsin received
sentences far lower than 63 months. Indeed, only nine of
2                                              No. 06-2207

104 defendants sentenced in the previous five years in
those counties received any prison time at all. Schmitt
argued to the district court that it should take this evi-
dence into account and sentence him below the guideline
minimum. The district judge disagreed and imposed a
guideline sentence of 63 months. Schmitt appeals his
sentence, arguing that 18 U.S.C. § 3553(a)(6) requires
district courts to consider the disparity between state and
federal sentences in choosing a sentence. He also asserts
that the district court erroneously believed that the
guidelines are mandatory in cases involving child pornog-
raphy and accordingly afforded too much weight to the
guidelines in this case. We agree with Schmitt in part.
Although the district court correctly rejected Schmitt’s
argument about federal/state disparities, we cannot be
confident that it approached the guidelines in the way that
United States v. Booker, 543 U.S. 220 (2005), and now Rita
v. United States, 127 S.Ct. 2456 (2007), require. We
therefore vacate the sentence and remand for resen-
tencing.


                             I
  In March 2004, the Norwegian government, attempting
to identify potential possessors and distributors of
child pornography, began investigating the global use of
computer-based, peer-to-peer file sharing programs. In the
course of that investigation, Schmitt’s internet protocol
address was identified as having shared at least seven files
containing child pornography. The Norwegians shared
this information with the U.S. Federal Bureau of Investi-
gation (“FBI”), which then pursued its own investigation.
Schmitt later admitted to FBI agents that he had down-
loaded movies and photographs depicting child pornogra-
phy; a subsequent search of Schmitt’s computer confirmed
that fact. Schmitt was charged in a three-count indict-
ment and pleaded guilty to the third count.
No. 06-2207                                              3

  After factoring in a number of sentencing enhancements
not relevant to this appeal, the court concluded that
Schmitt’s guideline range was 63-78 months’ imprison-
ment. He asked the district court to impose only a term of
probation, however, for a number of reasons. Schmitt’s
primary claim was that sentencing him to probation was
necessary to reduce or eliminate the disparity between
Wisconsin state sentences for child pornography possession
and federal sentences for the same crime. Schmitt also
argued that his particular crime was more innocuous than
other child pornography offenses, since he did not purchase
or produce the material, did not expose others to it, and
did not sexually assault any children. In addition, Schmitt
attempted to demonstrate that his crime was aberrational;
that generally he was a productive and upstanding mem-
ber of his community, he had strong and stable familial
connections, and he volunteered extensively before his
incarceration. He also sought counseling and psychological
treatment for his interest in child pornography and
underwent two psychological evaluations by doctors who
each concluded that Schmitt did not pose any risk of
engaging in sexual or dangerous misconduct in the future.
  The district court was not persuaded to sentence
Schmitt below the guidelines. It rejected his principal
argument that it was either required or entitled to con-
sider any disparity between state and federal sentencing
in determining Schmitt’s sentence. It also concluded that
the rest of Schmitt’s evidence was not compelling enough
to warrant a sentence below the guidelines. The court
emphasized on numerous occasions that Congress, by
passing the PROTECT Act in 2003, which targeted child
sex offenses, manifested an intent to prevent district
judges from departing from the guidelines in such cases.
Because “Congress has spoken” in this area, the court
thought, the favorable evidence offered on Schmitt’s be-
half did not permit the judge to impose a below-guidelines
sentence.
4                                               No. 06-2207

                             II
  On appeal, Schmitt argues first that the district court
should have considered the sentence Schmitt might have
received had he been charged with the same crime in
Wisconsin state court. Section 3553(a)(6) requires sentenc-
ing courts to weigh “the need to avoid unwarranted
sentence disparities among defendants with similar rec-
ords who have been found guilty of similar conduct. . . .”
Schmitt asserts that this provision applies not only to
disparities within the federal system, but also to dispari-
ties between sentences imposed in state court and those
handed down in federal court. Stark disparities in the
latter setting exist, as Schmitt showed with thorough
and compelling evidence that similarly-situated defendants
in Wisconsin state court nearly uniformly received sen-
tences far lower than those prescribed in the federal
guidelines. Schmitt acknowledges that his argument
lacked merit before Booker. See United States v. Schulte,
144 F.3d 1107, 1111 (7th Cir. 1998) (“[A] disparity between
federal and state sentences does not take a case out of
the heartland of cases contemplated by the Sentencing
Commission.”). He argues, however, that Booker afforded
district judges the flexibility to consider, and attempt to
minimize, differences between state and federal sentences.
We review de novo questions of law involving the inter-
pretation of a provision of the guidelines, see United
States v. Stitman, 472 F.3d 983, 986 (7th Cir. 2007).
  According to the Sentencing Commission, one of the
principal purposes of the guidelines was to establish
“uniformity in sentencing by narrowing the wide disparity
in sentences imposed by different federal courts for similar
conduct by similar offenders.” U.S.S.G. Ch.1, Pt.A(3), intro.
comment. (emphasis added). Since, as we recognized in
Schulte, “[t]he Guidelines have no effect on a state legisla-
ture’s freedom to impose criminal punishments that differ
from the federal government’s sanctions for the same
No. 06-2207                                                5

conduct . . . [a] disparity is not ‘unjustified’ simply be-
cause the federal and relevant state governments impose
different punishments on similar conduct.” 144 F.3d at
1110-1111. Indeed, adjusting federal sentences to accord
with those imposed for similar crimes in state court
would undermine the goal of uniformity within the fed-
eral system, to the extent that the states have adopted
different sentencing philosophies. Id. at 1111 (“If courts
were to depart from the sentences mandated by the
Guidelines in deference to numerous and varying stan-
dards in the state systems, they would eviscerate the
uniformity in federal sentencing that is the raison d’etre of
the Sentencing Reform Act of 1984.”); see also United
States v. Haynes, 985 F.2d 65, 70 (2d Cir. 1993) (“Allowing
departure because a defendant might have been subjected
to different penalties in state court would make federal
sentences dependent on the law of the state in which the
sentencing court was located, resulting in federal sen-
tencing that would vary from state to state. To adopt
this rationale for departure would surely undermine
Congress’ stated goal of uniformity in sentencing.”).
  The force of that reasoning survives Booker. Cf. United
States v. Wallace, 458 F.3d 606, 608 (7th Cir. 2006) (“A bad
reason for departing pre-Booker remains a reason that,
at least as a matter of advice from the guidelines, is still
bad . . .”). In United States v. Wurzinger, 467 F.3d 649,
653-54 (7th Cir. 2006), we considered a post-Booker claim
that the sentencing judge should have taken into account
the fact that Wurzinger’s co-conspirators received more
lenient sentences in state court. We held:
    Courts should reduce “unwarranted sentence dispari-
    ties among defendants with similar records who have
    been found guilty of similar conduct,” 18 U.S.C.
    § 3553(a)(6), but in most cases “disparities are at their
    ebb when the Guidelines are followed,” United States
6                                               No. 06-2207

    v. Boscarino, 437 F.3d 634, 638 (7th Cir. 2006). Reduc-
    ing a federal prisoner’s sentence to accord with that
    of a similarly situated state convict may decrease one
    sentencing disparity but simultaneously enlarges
    another: that between the federal convict and all
    similarly situated federal convicts. Id. Because penal-
    ties vary from state to state, sentence reductions to
    approach state penalties similarly vary with the
    state in which the federal sentencing court sits,
    unjustifiably creating disparities among federal
    convicts.
See United States v. Branson, 463 F.3d 1110, 1112 (10th
Cir. 2006); United States v. Williams, 282 F.3d 679, 681-82
(9th Cir. 2002). We cannot say that the court’s failure to
narrow the gap between Wurzinger and his co-conspirators
was unreasonable. See also Branson, 463 F.3d at 1112
(“Federal and state authorities have concurrent jurisdic-
tion over various offenses and may apply disparate punish-
ments to similar conduct. Adjusting federal sentences to
conform to those imposed by the states where the offenses
occurred would not serve the purposes of § 3553(a)(6), but,
rather, would create disparities within the federal system,
which is what § 3553(a)(6) is designed to discourage.”);
Williams, 282 F.3d at 681-82 (“[T]he district court abused
its discretion in departing [downward] on the ground that
there was a disparity between federal and state penal-
ties. . . . Allowing this result to stand would undermine the
goal of uniformity that Congress sought to ensure in
enacting the Guidelines, because every federal sentence
would become dependent upon the practice of the state
within which the federal court sits.” (internal quotation
marks omitted)).
  The district court thus correctly rejected as immaterial
for federal sentencing purposes the sentence that Schmitt
might have received had he been charged in state court.
No. 06-2207                                               7

                            III
  Schmitt’s second argument, however, has merit. He
claims that the district court inappropriately treated the
guidelines as mandatory in child pornography cases. In
opposition, the government points to the district court’s
statement at sentencing that “[c]learly [the Guidelines] are
not mandatory. . . .” We apply de novo review to a claim
that the district court failed to appreciate the advisory
nature of the Guidelines. Stitman, 472 F.3d at 986. We
agree with Schmitt that the district court placed undue
weight on the guideline range in choosing the ultimate
sentence, and that Schmitt is therefore entitled to be
resentenced.
  The Supreme Court recently reaffirmed our position
that “the sentencing court does not enjoy the benefit of a
legal presumption that the Guidelines sentence should
apply.” Rita, 127 S.Ct. at 2465; see also United States v.
Gama-Gonzalez, 469 F.3d 1109, 1110 (7th Cir. 2006).
Rather, the non-binding presumption of reasonableness
in sentencing “applies only on appellate review.” Rita, 127
S.Ct. at 2465. As we stated in United States v. DeMaree,
459 F.3d 791, 794-95 (7th Cir. 2006):
    The judge is not required—or indeed permitted, United
    States v. Brown, 450 F.3d 76, 81-82 (1st Cir. 2006)—to
    “presume” that a sentence within the guidelines range
    is the correct sentence and if he wants to depart give
    a reason why it’s not correct. All he has to do is con-
    sider the guidelines and make sure that the sentence
    he gives is within the statutory range and consistent
    with the sentencing factors listed in 18 U.S.C.
    § 3553(a).
  In this case, after the brief statement to which the
government alluded, the district judge explained his
understanding as follows:
8                                              No. 06-2207

    [W]hile the sentencing guidelines in today’s world are
    viewed as advisory in the context of the post-Blakely,
    Booker, Fanfan world, the hard reality remains that
    against 19 years or close to it of experience, there is
    a growing attitude, particularly in the Court of Ap-
    peals, now that we’re a little more than a year out
    from Booker and Fanfan, that sentences within the
    guidelines are presumptively correct. And if we, as
    trial Judges, are to impose sentences that are outside
    those mainstream guidelines as the sentencing com-
    mission and congress have promulgated them, there
    better be very, very cogent reasons why the Court
    believes it appropriate in a given case to impose a
    sentence outside the guidelines.
If it was not clear a year after Booker was decided, it is
now apparent in light of Rita that the approach described
by the district court gives too much weight to the Guide-
lines. It would be different—and unobjectionable—if the
judge had said only that, in light of the discretion he
now possesses under Booker and Rita, he was electing
to impose a guideline sentence in this particular case
unless the defendant could persuade him otherwise. But
that is not what the judge said here. Instead, the tenor of
his remarks indicated that he felt that there was an
outside constraint on his discretion that he was not free to
set aside.
  Moreover, the judge offered another reason, equally
troubling, for his choice of sentence. He suggested that
Schmitt’s guideline range deserved more weight in the
calculus because his crime involved child pornography, a
major focus of the PROTECT Act in 2003:
    Given the fact that Congress has spoken in unmistak-
    able terms, I cannot in good conscience deviate from
    the advisory sentencing guidelines because of the good
    things that have been said today about William
No. 06-2207                                               9

    Schmitt, the good things that appear in the
    presentence report, and the wonderful things that
    the professionals have to say about him in terms of
    lack of pedophilia, lack of pursuing in a physical sort
    of way those of tender age who otherwise are taken
    advantage of and appear in these materials.
      But what I am here to address is the simple reality
    that Congress has spoken loud and clear, and given the
    very close proximity to the mandatory sentence that
    would have otherwise applied, I frankly do not see
    and do not find any basis to impose other than the
    sentence called for at the low end of the advisory
    sentencing guidelines.
While we noted in United States v. Grigg, 442 F.3d 560,
564 (7th Cir. 2006), that district courts “ought to give
respectful attention to Congress’ view that [crimes involv-
ing child pornography] are serious offenses deserving
serious sanctions,” we made it equally clear that a district
judge’s duty in sentencing child sex offenders is no differ-
ent than it is in any other case. Child sex cases are not
immune from the dictates of Booker. We therefore have
held that “§ 3553(b)(2), [the sentencing provision of the
PROTECT Act intended to restrict the authority of the
district courts to depart from the Guidelines in sexual
offense and child pornography cases] cannot constrain
the discretion of a district court to impose a sentence
outside the range recommended by the Sentencing Guide-
lines . . . .” Id. at 564. There is a difference between
weighing the seriousness of a particular offense more
heavily under § 3553(a), and feeling compelled to impose
a guideline sentence for a particular class of crimes. The
latter approach inappropriately limits the consideration
that a district judge gives to the entire range of factors
made relevant by § 3553(a) before choosing a sentence. It
especially devalues those factors that are unique to an
individual defendant—like the “wonderful things” noted
10                                           No. 06-2207

by the district judge that were said about Schmitt—that
are not taken into account when calculating the guideline
range. Because, as we interpret this record, the district
judge placed a “thumb on the scale favoring a guideline
sentence,” United States v. Sachsenmaier, No. 05-3505,
2007 WL 1839282, at *4 (7th Cir. June 28, 2007), Schmitt
is entitled to be re-sentenced.
                        * * *
  The judgment of the district court is therefore VACATED
and the case is REMANDED for resentencing.

A true Copy:
      Teste:

                      ________________________________
                      Clerk of the United States Court of
                        Appeals for the Seventh Circuit




                  USCA-02-C-0072—8-7-07
