                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 12-3154

U NITED STATES OF A MERICA,
                                                Plaintiff-Appellee,
                                v.

W ILLIAM A. M ARTIN ,
                                            Defendant-Appellant.


           Appeal from the United States District Court
              for the Southern District of Illinois.
        No. 3:11CR30206-GPM—G. Patrick Murphy, Judge.



     A RGUED JANUARY 30, 2013—D ECIDED M AY 28, 2013




 Before M ANION, R OVNER, and W OOD , Circuit Judges.
  P ER C URIAM. William Martin appeals his 10-year sen-
tence for possession of child pornography. Because
the district court did not address two of Martin’s argu-
ments in mitigation, we vacate his sentence and remand
for resentencing.
  In July 2010, an undercover officer discovered that
Martin had made available on a file-sharing network
nine images and videos depicting child pornography. A
2                                                 No. 12-3154

search of the home Martin shared with his mother uncov-
ered hundreds more images and several videos of child
pornography on two computers in Martin’s bedroom.
  Martin pleaded guilty to possessing child pornography.
18 U.S.C. § 2252(a)(4)(B). The probation officer who
prepared the presentence report (“PSR”) calculated Mar-
tin’s total offense level at 30: his base offense level was 18,
U.S.S.G. § 2G2.2(a)(1), and he received a 2-level upward
adjustment because some of the material involved prepu-
bescent children, id. § 2G2.2(b)(2), another 2-level upward
adjustment because Martin had distributed images via
a file-sharing network, id. § 2G2.2(b)(3)(F), a 4-level in-
crease because some of the material was violent in
nature, id. § 2G2.2(b)(4), a 2-level increase because he
used a computer, id. § 2G2.2(b)(6), a 5-level increase
because he possessed more than 600 images, id.
§ 2G2.2(b)(7)(D), and a 3-level decrease because he ac-
cepted responsibility, id. § 3E1.1. Combined with
Martin’s category III criminal history, the guidelines
yielded an imprisonment range of 121 to 151 months.
Given the ten-year statutory maximum sentence, how-
ever, Martin’s effective guidelines range was 120 months.
18 U.S.C. § 2252(b)(2); U.S.S.G. § 5G1.1(c)(1).
  The PSR also described significant mental-health
issues, noting that Martin had been diagnosed with
major depressive disorder, dysthymia, alcohol and mari-
juana dependency, and polysubstance abuse, and had
received a “possible, but doubtful” diagnosis of bipolar
disorder. According to the PSR, Martin had also en-
gaged in self-mutilation as a youth, had been hospital-
No. 12-3154                                              3

ized for mood disorders, and had attempted suicide
several times, most recently about one year before the
report was written. Martin, the PSR noted, was not re-
ceiving medication or treatment at the time of his
arrest because he could not afford it.
  Martin did not object to the PSR calculations, but
he argued that he should receive a below-guidelines
sentence for several reasons. First, he argued that his
mental-health issues warranted a lower sentence be-
cause his behavior could be managed through treat-
ment. In support of this argument, he pointed out that
he had recently begun mental-health and substance-
abuse treatment and had earned his GED and completed
a cognitive-skills program and a work program. He
argued, too, that the child-pornography guidelines pro-
duce sentences longer than necessary to serve the
goals of sentencing in cases of mere possession, and
he presented articles and studies to this effect. He
further contended that given the wide availability
of child pornography, his offense resulted in little incre-
mental harm to the children depicted in the material
he possessed. And due to a trend toward below-
guidelines sentences in child-pornography cases, Martin
urged that a shorter sentence was necessary to avoid
unwarranted disparities.
  The district court adopted the probation officer’s guide-
lines calculations and sentenced Martin to 120 months’
imprisonment. In explaining this sentence, the court
noted that it did not place much weight on deterrence
given its view that child-pornography offenders were
4                                                 No. 12-3154

undeterrable because they “are not rational thinkers in
the first place.” Nevertheless, the court went on to high-
light “specific deterrence,” along with the serious-
ness of the offense and the need to protect the public,
as justifying its sentence.
  On appeal, Martin argues that his sentence is proce-
durally unreasonable because the district court ignored
his principal arguments that (1) a lengthy sentence
was unnecessary because his personal characteristics
indicate a low likelihood of recidivism, (2) the child-
pornography guidelines produce excessive sentences
in child-pornography possession cases, (3) his contribu-
tion to the total harm of child pornography was
negligible, and (4) a shorter sentence was necessary to
avoid disparities created by the trend toward below-
guidelines sentences for child-pornography defendants.
   At sentencing, a district court must consider a defen-
dant’s principal, nonfrivolous arguments for lenience.
See United States v. Chapman, 694 F.3d 908, 913-14 (7th
Cir. 2012). We have therefore ordered resentencing
when a district court either passes over a colorable argu-
ment in silence, see United States v. Robertson, 662 F.3d
871, 879-80 (7th Cir. 2011); United States v. Villegas-Miranda,
579 F.3d 798, 801-02 (7th Cir. 2009); United States
v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005), or when
its discussion is so cursory that we cannot discern its
reasons for rejecting the argument, see United States v.
Schroeder, 536 F.3d 746, 755-56 (7th Cir. 2008); United
States v. Miranda, 505 F.3d 785, 792-93, 796 (7th Cir. 2007).
  Here, the district court’s failure to address Martin’s
arguments regarding his likelihood of recidivism—
No. 12-3154                                               5

particularly in regard to his mental-health issues—war-
rants remand. Martin’s lengthy and serious mental-
health history was detailed in the PSR, which also
noted that Martin had made significant progress
since receiving treatment for his depression. The dis-
trict court was not required to accept Martin’s argu-
ment that treatment of his mental-health issues would
reduce his likelihood of reoffending, but Martin’s
position was not so lacking in merit as to warrant no
response. See United States v. Vidal, 705 F.3d 742, 744-45
(7th Cir. 2013) (remanding for resentencing where
district court failed to address defendant’s argument
that treatment of mental-health issues would render
him unlikely to reoffend); Miranda, 505 F.3d at 793
(same). And the district court’s general acknowledg-
ment that Martin had a “very, very difficult life,” which
was “not going to get any better” does not satisfy us
that the judge appreciated that Martin was seriously ill
or considered that his poor judgment might improve
with treatment.
  The district court also should have addressed Martin’s
argument that the child-pornography guidelines do not
approximate the goals of sentencing when applied to
defendants convicted only of possession who have
no history of contact offenses. In his sentencing memo-
randum, Martin cited studies for the general proposi-
tions that “child pornography possession offenses are
not particularly difficult to deter” and that “child pornog-
raphy offenders ‘do not represent a high risk of recidi-
vism.’ ” In light of these citations, the district court’s
statement that it had “not seen anything yet that
6                                              No. 12-3154

suggests that there’s adequate treatment for that” leaves
us doubtful that the court considered Martin’s argu-
ment. And although we have held that it is harmless
error for a district court to pass over a nonfrivolous
argument that a sentencing guideline is invalid, see
United States v. Aguilar-Huerta, 576 F.3d 365, 367-68 (7th
Cir. 2009) (noting that validity is an issue of law and
the argument can be made on appeal), Martin did not
argue that the child-pornography guidelines should
never be applied. Rather, he argued that they produce
disproportionately long sentences for child-pornography
possessors, like himself, with no history of contact of-
fenses. Cf. id. (“[W]e do not think a judge is required
to consider, not a nonfrivolous argument that a guide-
line produces an unsound sentence in the particular
circumstances of the case, but an argument that a guide-
line is unworthy of application in any case because it
was promulgated without adequate deliberation.”).
  For completeness, we briefly address Martin’s re-
maining procedural arguments. First, the district court
sufficiently explained its reasons for rejecting Martin’s
contention that he contributed only minimally to the
total harms of child pornography. Although the court
did not explicitly state that it was responding to an argu-
ment by Martin, the court discussed the seriousness of
his offense, highlighting the profound consequences on
the children involved and the fact that “society has
decided to punish that crime severely” in explaining its
decision not to impose a below-guidelines sentence.
In context, we construe these remarks as a rejection of
Martin’s attempt to minimize the seriousness of his
No. 12-3154                                                 7

offense. See Schroeder, 536 F.3d at 755; Miranda, 505 F.3d
at 792.
  Nor did the district court err in declining to address
Martin’s argument that a below-guidelines sentence
would be necessary to avoid unwarranted sentencing
disparities. This argument is squarely foreclosed by our
holding that “[a] sentence within a properly ascertained
range . . . cannot be treated as unreasonable by reference
to [§] 3553(a)(6).” United States v. Matthews, 701 F.3d 1199,
1205 (7th Cir. 2012) (quoting United States v. Boscarino,
437 F.3d 634, 638 (7th Cir. 2006)), and could therefore be
passed over in silence. See Cunningham, 429 F.3d at 678.
  Martin also argues that the district court commit-
ted procedural error by sentencing him on the basis
of speculation that child-pornography offenders are
irrational and undeterrable. But although we have held
that a district court’s unfounded speculation that sex
offenders are not deterrable may necessitate remand, see
United States v. Miller, 601 F.3d 734, 739-40 (7th Cir. 2010),
we have done so only where the court imposed an
above-guidelines sentence for purposes of deterrence.
See United States v. Reibel, 688 F.3d 868, 872 (7th Cir.
2012) (“[I]mportantly, Reibel received a presumptively
reasonable within-Guidelines sentence . . . whereas the
defendant in Miller was given an above-Guidelines sen-
tence requiring special justification.”). Moreover, al-
though the district court expressed skepticism that sex
offenders can be deterred, it seemed to have in mind
general deterrence only, given its later statement that
“the seriousness of the offense and the question of specific
8                                                 No. 12-3154

deterrence is all that’s at work” in its choice of sentence.
And finally, the court suggested that its views on the
efficacy of deterrence did not result in a longer sen-
tence, explaining that it did not mean to suggest that
“there’s recidivism beyond what’s accounted for in the
guidelines.”
  Accordingly, we V ACATE            Martin’s   sentence   and
R EMAND for resentencing.




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