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

No. 06-3374
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                               v.

JAMES BEIER,
                                           Defendant-Appellant.
                        ____________
           Appeal from the United States District Court
              for the Western District of Wisconsin.
           No. 05-CR-172-S-01—John C. Shabaz, Judge.
                        ____________
       ARGUED APRIL 18, 2007—DECIDED MAY 29, 2007
                        ____________

  Before POSNER, COFFEY, and FLAUM, Circuit Judges.
  POSNER, Circuit Judge. After pleading guilty to produc-
ing child pornography, the defendant was sentenced to
360 months in prison. That was the statutory maximum,
18 U.S.C. § 2251(e), although the bottom of the applicable
guidelines; the top is life, but of course the statutory
maximum controls. The defendant had produced a num-
ber of videotapes and DVDs depicting nude prepubescent
boys. Some showed him fondling the boys’ genitals. He
had also had oral sex with some of the boys, though off-
camera.
  He argues that the factors set forth in 18 U.S.C. § 3553(a)
to guide the sentencing judge required a lower sentence
2                                                No. 06-3374

than the guidelines minimum of 360 months. He bases the
argument primarily on a cluster of personal experiences
and characteristics. He was sexually molested as a child
by his half-brother, and he has a low IQ (83), depression,
and learning disabilities as a consequence of which he
received social security disability benefits until his arrest.
He also argues, however, that his sentence is inconsistent
with the principle of marginal deterrence (United States
v. Newsom, 402 F.3d 780, 785-86 (7th Cir. 2005)) because he
could not have been given a longer sentence for produc-
ing child pornography even if, instead of merely touch-
ing the genitalia of the children whom he molested, he
had raped them on camera. 18 U.S.C. § 2251(e). Relatedly
he argues that his sentence, by punishing less serious
misconduct as heavily as more serious, creates an arbitrary
disparity in sentencing. And last he argues that a 240-
month sentence would be adequate to achieve the peno-
logical objectives set forth in section 3553(a).
  The statute directs the sentencing judge to consider a
variety of factors bearing on a proper sentence; so far as
they might bear on this case they are
    (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
                          *   *   *
No. 06-3374                                                 3

    (6) the need to avoid unwarranted sentence disparities
    among defendants with similar records who have been
    found guilty of similar conduct.
The statute does not attach weights to these factors, thus
leaving the sentencing judge with enormous latitude,
reinforced by the vagueness of some of the factors (what is
“just punishment,” for example?). A party who fails to
provide cogent reasons or credible empirical evidence
for or against a proposed sentence is pretty much at the
mercy of the instincts and intuitions of the sentencing
judge.
  The defendant failed to give the district judge any help
in picking a sentence. It was not nearly enough for his
lawyer to point out that his client had been a victim of child
molestation; the lawyer presented no evidence or studies to
indicate that such a history makes a person less able to
avoid becoming a child molester, let alone becoming a
producer of child pornography (which might however be
considered a form of child molestation when it involves
photographing actual children in erotic poses).
   There is evidence that being a victim of child molestation
is highly correlated with becoming a child molester. E.g.,
United States Department of Justice, Bureau of Justice
Statistics, “Sex Offenses and Offenders: An Analysis of
Data on Rape and Sexual Assault” vi (1997) (“sexual
assault offenders were substantially more likely than any
other category of offenders to report having experienced
physical or sexual abuse while growing up”); Carol
Veneziano, Louis Veneziano & Scott LeGrand, “The
Relationship Between Adolescent Sex Offender Behaviors
and Victim Characteristics With Prior Victimization,” 15 J.
Interpersonal Violence 363 (2000); Frederick Mathews, The
Invisible Boy: Revisioning the Victimization of Male Children
4                                                 No. 06-3374

and Teens 35-38 (1996); Danya Glaser & Stephen Frosh, Child
Sexual Abuse 21-22 (2d ed. 1993). But the defendant’s lawyer
did not refer the district judge to any of this evidence. Nor
did he present any evidence suggesting that a low-normal
IQ, or learning disabilities, break down a person’s resis-
tance to becoming a child molester and a producer of
child pornography. (There may not be any such evidence.
See, e.g., Paul Okami & Amy Goldberg, “Personality
Correlates of Pedophilia: Are They Reliable Indicators?,”
29 J. Sex Research 297, 309-10 (1992).)
  Even if such characteristics do make it more difficult
for a person to comply with the law, the question, unad-
dressed by the defendant, would remain whether they
require a shorter sentence or a longer sentence than would
be appropriate for a defendant who lacked those char-
acteristics. The more difficult it is for a person to resist a
desire for sexual contact with children, the more likely
he is to recidivate, and this is an argument for a longer
prison sentence. And on grounds of deterrence as well as
incapacitation, for the stronger the impulse to commit a
criminal act, the greater must be the threat of punishment
in order to deter it.
  The defendant was 31 when sentenced, so that had he
been sentenced to 20 years in prison he would (with good-
time credits) be out before he was 50. His lawyer pre-
sented no evidence that the compulsion to have sex with
children is so far diminished at that age as to render the
person relatively harmless, or indeed that it is diminished
at all. We know that a nontrivial fraction of recidivist sex
offenders are over 50, see, e.g., Bureau of Justice Statistics,
supra, at 8-10; Robert A. Prentky et al., “Sexually Violent
Predators in the Courtroom: Science on Trial,” 12 Psychol-
ogy, Public Policy & Law 357, 375-377 (2006), though we
do not know how many of these are child molesters.
No. 06-3374                                               5

   The defendant is correct that the punishment for child
pornographers who engage in worse misconduct than the
defendant is capped at 360 months, so that they cannot be
punished more heavily than he was. But the defendant’s
lawyer misunderstands the concept of marginal deterrence.
It is not, as he seems to believe, that crimes of different
gravity must never be punished the same. It is that punish-
ing two crimes of different gravity the same is unsound
when to do so would encourage additional crimes. See
Tracey L. Meares, Neal Katyal & Dan M. Kahan, “Updat-
ing the Study of Punishment,” 56 Stan. L. Rev. 1171, 1172-
80 (2004), and references cited there. Were robbery pun-
ished as severely as murder, a robber would have an
increased incentive to murder his victim in order to
eliminate a key witness. (Indeed, he would have an in-
creased incentive to murder any witness.) He would
still have some disincentive to commit the more serious
crime, because police make a greater effort to catch a
murderer than a robber. But this effect would be counter-
balanced by the greater difficulty of catching and con-
victing the perpetrator of a crime to which there are no
surviving witnesses.
  The argument from marginal deterrence fails in the
present case: first, because child pornographers who molest
the children whom they photograph can be punished
separately for molestation, and the more heavily the worse
the molestation, see, e.g., 720 ILCS 5/12-13 through 5/12-
16, and a sentence for molestation can be made to run
consecutively to a sentence for pornography. And second,
a child who is raped is more likely to complain than one
who is merely touched; the rape of a child is also likely to
produce physical evidence that a touching would not. So
the rapist is more likely to be apprehended, as well as to
6                                              No. 06-3374

be punished more heavily. For these reasons, reducing the
punishment of the child pornographer because another
pornographer might be a worse molester yet could not be
sentenced more heavily for pornography would have no
effect other than to increase the amount of child pornogra-
phy; and a reduction in punishment that had only that
effect would not reduce an unwarranted disparity in
sentencing.
                                                AFFIRMED.

A true Copy:
       Teste:

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




                   USCA-02-C-0072—5-29-07
