                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-2622

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

M ARK C. H UFFSTATLER,
                                            Defendant-Appellant.


           Appeal from the United States District Court
              for the Southern District of Illinois.
       No. 3:07-cr-30167-JPG-DGW-1—J. Phil Gilbert, Judge.



     A RGUED JANUARY , 28 2009—D ECIDED JUNE 30, 2009




 Before B AUER, R IPPLE, and T INDER, Circuit Judges.
  P ER C URIAM. Mark Huffstatler pleaded guilty to pro-
ducing child pornography, see 18 U.S.C. § 2251(a), and the
district judge imposed an above-guidelines sentence.
Huffstatler seeks a remand for resentencing, contending
that his sentence is unreasonable because the child-pornog-
raphy sentencing guidelines are not the product of empiri-
cal research. We affirm.
2                                               No. 08-2622

                    BACKGROUND
  Huffstatler hired a 14-year-old boy, T.P., to help with
some household chores, but things turned unsavory
when Huffstatler asked T.P. to take off his shirt and
loosen his shorts for pictures that Huffstatler planned to
sell on the internet. T.P. initially agreed, but after a few
photos he asked to leave. Huffstatler refused. Removing
T.P.’s pants, Huffstatler manipulated the boy’s penis
until it was erect and took 16 photographs of him.
  Huffstatler pleaded guilty to producing child pornogra-
phy, see 18 U.S.C. § 2251(a), and the district judge calcu-
lated his sentencing-guidelines range. The base offense
level was 32, see U.S.S.G. § 2G2.1, which the court
increased to 38 because T.P. was between the ages of
12 and 16 years, see U.S.S.G. § 2G2.1(b)(1)(B), Huffstatler
had sexual contact with T.P., see U.S.S.G. § 2G2.1(b)(2)(A),
and Huffstatler intended to distribute the pictures, see
U.S.S.G. § 2G2.1(b)(2)(A). The judge ultimately reduced
Huffstatler’s offense level to 35 because he quickly
pleaded guilty. See U.S.S.G. § 3E1.1(a) & (b).
  Turning to criminal history, the district court observed
that Huffstatler had victimized many others. First, there
were his violent felonies: he served four years in prison
after pleading guilty to sexually assaulting his 13-year-old
adopted son (in exchange the state prosecutor dismissed
charges that Huffstatler had raped his stepsons, who were
then six and eight years old), and he was convicted of
unlawful restraint for locking an 18-year-old man in the
trunk of his car. There were also repeated attempts at
sexual contact with teenage boys: in 1999 a 13-year-old
No. 08-2622                                                 3

told the police that Huffstatler had propositioned him
and, mere months before the incident with T.P., a 14-year-
old reported that Huffstatler tackled and groped him as
he fled Huffstatler’s home. Huffstatler’s previous violent
felonies qualified him as a career offender with a Category
VI criminal history, see U.S.S.G. § 4B1.1, and his sexual-
assault conviction also triggered a 25-year statutory
minimum sentence, see 18 U.S.C. § 2251(e). Thus, although
Huffstatler’s offense level and criminal history category
intersected at 292 to 365 months’ imprisonment, the
district court correctly noted that the effective guide-
lines range was 300 to 365 months.
  Huffstatler urged the district court to sentence him to
the statutory minimum prison term, 25 years. After
evaluating the factors laid out in 18 U.S.C. § 3553(a), the
sentencing judge instead concluded that an above-guide-
lines sentence was necessary for four reasons: to deter
Huffstatler (as his prior short sentences had not) and
other would-be predators; to protect society from
Huffstatler’s incorrigible recidivism; to reflect the serious-
ness of his offense and its effect on his victim; and to
allow time for Huffstatler to seek treatment. The court
sentenced Huffstatler to 450 months’ imprisonment.


                        ANALYSIS
  Relying on a 2008 paper by federal defender Troy
Stabenow, Deconstructing the Myth of Careful Study: A
Primer on the Flawed Progression of the Child Pornography
Guidelines 27-32 (July 3, 2008), http://www.fd.org/pdf_lib/
child%20porn%20july%20revision.pdf, Huffstatler argues
4                                                No. 08-2622

that the guidelines for crimes involving sexual exploitation
of a minor, U.S.S.G. §§ 2G2.1-.2, were crafted without the
benefit of the Sentencing Commission’s usual empirical
study and are invalid. He concludes that the district
judge was obligated to sentence him below the guide-
lines range and that his sentence is, consequently, unrea-
sonable. Because Huffstatler did not raise this argument
at sentencing, we review for plain error and may, in our
discretion, vacate the district court’s sentence only if
there was an error that is plain and that affects
Huffstatler’s substantial rights. See United States v. Pree,
408 F.3d 855, 868-69 (7th Cir. 2005). We would exercise
that discretion only if the error seriously affects the fair-
ness, integrity or public reputation of judicial proceedings.
See United States v. James, 464 F.3d 699, 709 (7th Cir. 2006).
  Stabenow’s article has been gaining traction in the
district courts and has been cited numerous times for
the proposition that a judge who disagrees generally with
the harshness of the child-pornography guidelines may
impose a sentence well below the guidelines range for
that reason alone. E.g., United States v. Shipley, 560
F. Supp. 2d 739,744-46 (S.D. Iowa 2008) (explaining that
the guidelines’ “advice in this [child-exploitation] case is
less reliable than in other cases where the guidelines
are based on study and empirical data,” and, thus,
90 months’ imprisonment was more appropriate than
guidelines range of 210 to 240 months); United States
v. Hanson, 561 F. Supp. 2d 1004, 1008-12 (E.D. Wis. 2008)
(sentencing defendant whose effective guidelines range
was 210-240 months’ imprisonment to 72 months);
United States v. Grober, 595 F. Supp.2d 382, 390-412 (D.N.J.
No. 08-2622                                               5

Dec. 22, 2008) (sentencing defendant to 60 months’ impris-
onment, though guidelines range was 235 to 293 months);
United States v. Baird, 580 F. Supp. 2d 889, 894-96 (D.
Neb. 2008) (imposing sentence of 24 months, although
guidelines range was 46 to 57 months). Stabenow presents
the following syllogism: Kimbrough v. United States, 128
S. Ct. 558 (2007), allows district courts to disagree on
policy grounds with sentencing guidelines that exhibit
methodological flaws; the same methodological flaws
that characterize the crack guidelines—lack of empirical
support—also undermine the child-pornography guide-
lines; therefore, district courts may sentence child-pornog-
raphy offenders below the guidelines range based on
disagreement with the policy embodied in the guide-
lines. Stabenow, supra, at 27-32.
  Huffstatler parroted this construction, up to a point, and
the government’s brief provided no reason to doubt
Stabenow’s conclusion. The government conceded that
“Kimbrough v. United States, 128 S.Ct. 558, 575 (2007), does
afford a sentencing court discretion to vary from the
guidelines when they do not reflect ‘empirical data and
national experience.’ ” And, perhaps for good reason,
the government did not take issue with Huffstatler’s
premise that the child-exploitation guidelines lack an
empirical basis. As the Sentencing Commission itself
has stated, “[m]uch like policymaking in the area of drug
trafficking, Congress has used a mix of mandatory mini-
mum penalty increases and directives to the Commission
to change sentencing policy for sex offenses.” U.S. Sen-
tencing Comm’n, Fifteen Years of Guidelines Sentencing:
An Assessment of How Well the Federal Criminal Justice
6                                                   No. 08-2622

System is Achieving the Goals of Sentencing Reform 72-73
(November 2004), available at http://www.ussc.gov/15_year/
15_year_study_full.pdf.1
  But we need not ultimately decide whether Kimbrough
gives district courts the discretion to disagree with the
child-pornography guidelines on policy grounds,
because Huffstatler does not contend that the district
court abused its discretion. See United States v. Taylor,
520 F.3d 746, 747-48 (7th Cir. 2008). He argues instead
that the methodological flaws that supposedly run
through the child-pornography guidelines invalidate
them entirely. Thus, he submits, not only may a district
court sentence below the child-exploitation guidelines
based on policy disagreements with them, it must.
   Huffstatler’s stance is untenable. His argument is based
on analogy to the crack guidelines, yet those guidelines
remain valid, even after Kimbrough. See United States
v. Roberson, 517 F.3d 990, 995 (8th Cir. 2008). Judges are not


1
   Following oral argument, the government filed a motion
that for the first time responded to Huffstatler’s contentions.
The government’s 31-page submission criticized the notion that
Kimbrough has relevance beyond the crack guidelines and took
issue with Huffstatler’s assertion that the child-exploitation
guidelines lack an empirical basis. But the government already
had a chance to counter the positions Huffstatler advanced in
his opening brief—its own brief. Thus, these arguments come
too late for our consideration. See Valentine v. City of Chicago,
452 F.3d 670, 680 (7th Cir. 2006). And anyway, for the reasons
that we explain below, the government’s position, even if
correct, would not affect the outcome of this appeal.
No. 08-2622                                                7

required to disagree with them; a within-guidelines
sentence for a crack offense may be reasonable. Id.; see also
United States v. Lopez, 545 F.3d 515, 516-17 (7th Cir. 2008)
(affirming a within-guidelines sentence for possession
with intent to distribute crack). The child-exploitation
guidelines are no different: while district courts
perhaps have the freedom to sentence below the child-
pornography guidelines based on disagreement with the
guidelines, as with the crack guidelines, they are
certainly not required to do so. Because the district
court was not obligated to sentence Huffstatler below the
range recommended by valid sentencing guidelines,
Huffstatler cannot establish error, let alone plain error.
  Finally, Huffstatler’s sentence, though above the guide-
lines range, was reasonable. The sentencing judge cor-
rectly calculated the guidelines range and then reviewed
the § 3553(a) factors—including recidivism, deterrence,
seriousness of the crime, and time for treatment—in some
detail before announcing that a longer sentence was
justified. We require nothing more. See United States
v. McIntyre, 531 F.3d 481, 483-84 (7th Cir. 2008).
  Accordingly, we A FFIRM Huffstatler’s sentence.




                           6-30-09
