                              In the

    United States Court of Appeals
                For the Seventh Circuit
No. 13-1217

UNITED STATES OF AMERICA,
                                                Plaintiff-Appellee,

                                v.


JASON E. STARKO,
                                             Defendant-Appellant.


        Appeal from the United States District Court for the
                     Southern District of Illinois.
     No. 3:11-cr-30230-DRH-1 — David R. Herndon, Chief Judge.


    ARGUED MAY 21, 2013 — DECIDED NOVEMBER 25, 2013

   Before RIPPLE, WILLIAMS, and TINDER, Circuit Judges.
   RIPPLE, Circuit Judge. Jason Starko was indicted for, and
pleaded guilty to, two counts of production of child pornogra-
phy, in violation of 18 U.S.C. § 2251(a). The court sentenced
Mr. Starko to 360 months’ imprisonment on each count, to run
concurrently. Mr. Starko maintains that, in imposing sentence,
the district court failed to address one of his principal,
nonfrivolous arguments in support of a lower sentence. For the
2                                                   No. 13-1217

reasons set forth in the following opinion, we affirm the
judgment of the district court.


                                I
                       BACKGROUND
    Mr. Starko was charged with and pleaded guilty to two
counts of producing child pornography. The videos that
formed the basis for the indictment were of a five-year-old girl;
Mr. Starko was a friend of the girl’s mother and was living in
their home. Subsequent interviews with the victim, her seven-
year-old sister and Mr. Starko’s own daughter revealed that, in
addition to filming and photographing the victim and her
sister, Mr. Starko had touched the genitals of all three girls.
   Mr. Starko was evaluated by a psychiatrist, Dr. Daniel
Cuneo, to determine his competency to stand trial. Dr. Cuneo’s
report concluded that Mr. Starko was competent, but reflected
“a diagnosis of major depressive episode, recurrent,
polysubstance dependence in a controlled environment, and
schizotypal personality disorder.” Appellant’s Br. 9.
    Mr. Starko eventually pleaded guilty to the charges, and a
presentence report (“PSR”) was prepared. The PSR calculated
Mr. Starko’s guideline range as 360 months. Before the district
court, Mr. Starko raised two objections to his sentence calcula-
tion, neither of which he renews on appeal. At sentencing, his
counsel also argued for a below-guidelines sentence “princi-
pally because my client’s [sic] mentally ill.” R.53 at 69.
Mr. Starko submitted Dr. Cuneo’s report for the court’s
consideration, and Mr. Starko’s counsel highlighted
No. 13-1217                                                       3

Dr. Cuneo’s findings, as well as the report of mental and
emotional health set forth in the PSR. Mr. Starko’s counsel also
argued that Mr. Starko’s failure to admit to his crimes at an
earlier stage in the proceedings was due to the lack of medica-
tion for his mental illness. Near the end of his argument,
Mr. Starko’s counsel added the following observation:
       Now, [the Government] tells the Court, give him
     40 years because it protects the public. But there are
     other mechanism[s] out there to protect the public,
     Your Honor. You can sentence my client to a sen-
     tence of 20 years, and at the end of that term he will,
     because of the nature of this case, he will be evalu-
     ated to see whether he’s sexually dangerous or not,
     and if he’s sexually dangerous at the end of that
     term, he will be the subject of a civil commitment,
     and he isn’t going to be turned loose on the public in
     this country under the law as it stands today or in
     the future unless it’s safe. At the end of the term that
     you give him he’s going to be thoroughly evaluated.
     He’s going to be evaluated regardless, but at the end
     of the term a decision will be made whether he can
     be released in the community, properly supervised
     and properly medicated or whether or not he’ll be
     the subject of an indefinite civil commitment.
Id. at 72–73. Mr. Starko’s counsel then concluded: “So I would
suggest to the Court, you can sentence him to 20 years, and
that punishes the man for the deed, but it also takes into
account the fact that at least part of this is explained by his
history, characteristics, and mental illness.” Id. at 73. Mr. Starko
did not submit a sentencing memorandum concerning the
4                                                               No. 13-1217

merits or likelihood of civil commitment, and this was the only
mention of civil commitment during the sentencing hearing.
   When announcing the sentence, the district court expressed
doubt that either Mr. Starko’s conduct or his excuses for his
conduct were attributable to his medication, his lack of
medication or his mental illness. See id. at 82. It stated:
        This is quite serious, and it’s the deliberate
      nature—I have a hard time accepting the defen-
      dant’s defense of himself in terms of blaming it both
      on the type of medication he was taking, and then
      the medication he didn’t take, and the wondering
      about the phantom hand syndrome.[1] When you see
      the picture of him touching, and the way in which
      he touched the vagina of the victim, not only spread-
      ing the legs, as [the Government] talked about, but
      spreading the—actually spreading the vagina of the
      child was just terrible. He clearly had an agenda
      with respect to these victims—the victim in the
      pictures, and also the other child that was consid-
      ered relevant conduct in this case.
Id. The court also voiced concerns with respect to the serious-
ness of Mr. Starko’s actions:



1
   In his allocution, Mr. Starko informed the court that he “recently [had
been] reading a book how sometimes we can’t make decisions on our own,
the things like Tourette’s and the phantom hand syndrome and things.”
R.53 at 79. Mr. Starko appeared to be attributing his criminal actions, at least
in part, to his inability to “control [his] hands” as dictated by “his subcon-
scious.” Id.
No. 13-1217                                                   5

       When we look at the history and characteristics,
     though he didn’t have [a] prior conviction, the Court
     certainly believed he had prior conduct of a similar
     nature with [another child], and there was a strong
     implication about another, so there’s certainly prior
     conduct that leads the Court to believe that this
     wasn’t the only time for this kind of conduct with
     the defendant, though we don’t know about produc-
     tion of child pornography; we only know about the
     conduct with respect to child molestation. So we
     know that the defendant is quite dangerous.
Id. at 82–83. The court then evaluated the evidence it had been
provided and the arguments that had been made in light of the
factors set forth in 18 U.S.C. § 3553:
       The problem that the Court is presented with is,
     we have someone that has a mental illness of unde-
     fined parameters, that has a history of sexual crimes,
     with a significant sexual crime on this occasion, that
     has gone undiagnosed and untreated for, it would
     appear, a number of years. And what is the effect
     upon the Court in terms of how the Court is to treat
     that with respect to the sentence imposed reflecting
     the seriousness of the offense, providing just punish-
     ment, affording adequate deterrence to criminal
     conduct, and protecting the public from further
     crimes of the defendant?
Id. at 83–84. After considering these factors, the court an-
nounced its sentence:
6                                                   No. 13-1217

       The Court finds, quite frankly, that in a case such
     as this, that in order to provide adequate protection
     to the public for a gentleman that is 36 years old,
     who has the history and characteristics that this
     defendant has, who has the mental issues that this
     defendant has, who has committed the serious crime
     that he has, that the appropriate punishment for this
     particular crime is a punishment that is consistent
     with the advice issued by the Sentencing Commis-
     sion, and so will impose a sentence of 360 months.
Id. at 84–85.


                               II
                        DISCUSSION
   On appeal, Mr. Starko’s sole argument is that the district
court committed procedural error because it failed to address
his argument that a twenty-year sentence was sufficient to
serve the goals of sentencing because of the possibility of civil
commitment at the end of his term. Appellant’s Br. 2. He urges
that a remand is necessary so that the district court may
address explicitly this issue.
   The Government counters that the district court addressed
Mr. Starko’s alleged mental illness, which was his principal
argument for lenity. It also maintains that there is only a
possibility that Mr. Starko will be civilly committed after he
serves his term of imprisonment. Consequently, any argument
that civil commitment guarantees the public’s safety is purely
No. 13-1217                                                        7

speculative and lacks the factual foundation necessary to
warrant comment by the district court.
    We have had several occasions to explain the responsibility
of a district court in handing down a criminal sentence. We
have stated that,
       [t]o avoid procedural error, sentencing judges
     must correctly calculate the guidelines range, evalu-
     ate the factors in 18 U.S.C. § 3553(a), and rely on
     properly supported facts. Judges must also ade-
     quately explain the chosen sentence to allow for
     meaningful appellate review and to promote the
     perception of fair sentencing. In selecting an appro-
     priate sentence, district courts are expected to
     address principal, nonfrivolous arguments in miti-
     gation, but should disregard contentions lacking
     factual foundation.
United States v. Chapman, 694 F.3d 908, 913–14 (7th Cir. 2012)
(citations omitted) (internal quotation marks omitted). Courts
do not have to engage in “a discourse of every single § 3553(a)
factor”; however, “it is also the case that a ‘rote statement that
the judge considered all relevant factors will not always
suffice.’” United States v. Harris, 567 F.3d 846, 854 (7th Cir. 2009)
(quoting United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.
2005)).
     In particular, when a court has “passed over in
     silence the principal argument made by the defen-
     dant even though the argument is not so weak as
     not to merit discussion,” we do not have the assur-
     ance we need to satisfy ourselves that the defen-
8                                                  No. 13-1217

     dant’s individual circumstances have been thor-
     oughly considered.
Id. (quoting Cunningham, 429 F.3d at 679).
    We perceive no procedural error in the district court’s
approach. The district court thoroughly addressed the issue of
Mr. Starko’s mental illness and any possible mitigating role it
should have played in his sentence. Indeed, after defense
counsel had addressed the court on the matter of sentencing
and Mr. Starko had begun his allocution, the court interrupted
the defendant and questioned him directly about his mental
health history. The dialogue between the court and the
defendant revealed a person who had realized that he had
some sort of mental disorder, had engaged in various forms of
self-diagnosis and self-help, but had received no diagnosis or
professional care until Dr. Cuneo’s examination in connection
with this proceeding. The transcript reveals a district court
that, far from ignoring the contention of defense counsel,
actively pursued the matter of Mr. Starko’s mental health. The
court acknowledged that Mr. Starko “clearly … has a mental
issue.” R.53 at 83. Nevertheless, the court was unable to accept
that there was a connection between Mr. Starko’s mental illness
and the crimes to which he pleaded: “I have a hard time
accepting the defendant’s defense of himself in terms of
blaming it both on the type of medication he was taking, and
then the medication he didn’t take[] … .” Id. at 82. Moreover,
the court noted that there was no question concerning
Mr. Starko’s competency, his ability to aid in his own defense
or his capability to understand the wrongfulness of his actions.
See id. at 83. Consequently, this is not a situation where the
No. 13-1217                                                    9

district court “passed over in silence” the defendant’s principal
argument for a reduced sentence. Harris, 567 F.3d at 854
(internal quotation marks omitted). It is clear that the court
understood Mr. Starko’s arguments and his condition, but did
not believe that his condition excused or mitigated the “quite
serious” and “deliberate” crimes that Mr. Starko committed.
R.53 at 82.
    We have noted that “[t]he amount of explanation required
from the district court varies with the circumstances.” United
States v. Pietkiewicz, 712 F.3d 1057, 1061 (7th Cir. 2013). Here,
although the district court did not explicitly mention civil
commitment in its statement of reasons, it did set forth a
sufficient explanation as to why a period of lengthy incarcera-
tion was necessary to protect the public.
    An individual may be civilly committed only if a court
finds, by clear and convincing evidence, that he is “sexually
dangerous.” 18 U.S.C. § 4248(d). By definition, a person is
“sexually dangerous” only if he “is sexually dangerous to
others,” that is, he “suffers from a serious mental illness,
abnormality, or disorder as a result of which he would have
serious difficulty in refraining from sexually violent conduct or
child molestation if released.” 18 U.S.C. § 4247(a)(5)–(6)
(emphasis added). In other words, to be civilly committed,
there must be a causal connection between an individual’s
mental illness and his behavior. The evidence at trial did not
convince the district court that there was an established causal
connection between Mr. Starko’s offense conduct and his
mental condition. Our independent examination of the record
convinces us that there was more than an adequate basis for
10                                                  No. 13-1217

the court’s skepticism and for its reluctance to jeopardize the
public’s protection from Mr. Starko’s predatory conduct on
such thin psychiatric evidence. The district court was on solid
ground in not accepting Mr. Starko’s argument that his illness
was related to his predatory actions. Having determined that
one of the requirements for civil commitment could not be
satisfied, the district court could not rely on the civil commit-
ment process to protect adequately the public from any future
predatory behavior on the part of Mr. Starko.
   Our case law requires that a district court “must … ‘ade-
quately explain the chosen sentence to allow for meaningful
appellate review and to promote the perception of fair sentenc-
ing.’” Chapman, 694 F.3d at 913 (quoting Gall v. United States,
552 U.S. 38, 50 (2007)). The district court’s explanation of Mr.
Starko’s sentence satisfies these standards.


                          Conclusion
   For the reasons set forth above, we affirm the judgment of
the district court.
                                                    AFFIRMED
