                                                 NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  ____________

                      No. 09-3367
                     ____________

           UNITED STATES OF AMERICA




                            v.

         CHRISTOPHER MICHAEL RUDOW,

                                           Appellant

                     ____________

     On Appeal from the United States District Court
               for the District of New Jersey
                (D.C. Number 09-cr-00062)
    District Judge: Honorable Garrett E. Brown, Junior

                     ____________

       Submitted Under Third Circuit LAR 34.1(a)
                    April 12, 2010

Before: FISHER, HARDIMAN, and COWEN, Circuit Judges.

                 (Filed: April 13, 2010)


                     ____________

               OPINION OF THE COURT
                    ____________
HARDIMAN, Circuit Judge.

       Appellant Christopher Rudow challenges both the procedural and substantive

reasonableness of his 326-month sentence after pleading guilty to one count of production

of child pornography in violation of 18 U.S.C. § 2251(a). We will affirm.

                                             I.

       Beginning on Thanksgiving Day 2006 and continuing through January 2007,

Rudow made several videos of himself sexually abusing his fourteen-year-old daughter.

After the victim disclosed the abuse to her mother, Rudow was arrested by local police.

A search of Rudow’s home yielded several videos showing Rudow abusing his daughter

as well as over twenty other videos depicting child pornography.

       In February 2009, Rudow was charged with one count of production of child

pornography under 18 U.S.C. § 2251(a). Rudow pleaded guilty pursuant to a written plea

agreement in which he stipulated that his offense involved sexual contact with his

daughter. The District Court calculated Rudow’s advisory Guidelines imprisonment

range as 292 to 360 months. The severity of Rudow’s Guidelines range was driven in

part by his six prior felony convictions, which placed him in criminal history category VI.

       At sentencing, Rudow neither challenged the calculation of his Guidelines range

nor argued for a downward departure. Instead, he requested a significant downward

variance to 180 months, the minimum sentence allowed by statute. In support of this

request, Rudow argued that his lifelong heroin addiction severely impaired his ability to


                                             2
make decisions and that a fifteen-year sentence would adequately reflect the seriousness

of the offense. Rudow cited a study suggesting that he would pose a low risk of

recidivism upon release and claimed the mandatory minimum would afford ample

opportunity for rehabilitation. Finally, he argued that USSG § 2G2.1 was not entitled to

deference by the District Court because it was improperly adopted by the United States

Sentencing Commission.

       Rejecting these arguments, the District Court found the Guidelines range “quite

reasonable” given the facts of the case. The District Court focused in particular on the

serious nature of Rudow’s offense, its impact on his daughter, and Rudow’s lengthy

criminal history, which belied any suggestion that he posed a minimal risk of recidivism.

Consequently, the District Court refused to vary downward and imposed a sentence of

326 months imprisonment, the midpoint of the advisory Guidelines range.

                                            II.

                                            A.

       Rudow argues his sentence is procedurally unsound for three reasons.

       First, he claims the District Court applied the “parsimony provision” of 18 U.S.C.

§ 3553(a) only within the confines of his Guidelines range of 292 to 360 months instead

of within the statutory range of 180 to 360 months. Stated another way, Rudow contends

the District Court mistakenly considered only what Guidelines sentence, and not what




                                             3
sentence in general, would be “sufficient but not greater than necessary” to achieve the

sentencing purposes enumerated in § 3553(a)(2).

       To the extent Rudow implies that the District Court erroneously treated the

advisory Guidelines range as mandatory, he is incorrect. The District Court explained

that it was “look[ing] at the guidelines as guidelines” only. App. at 176. After

considering Rudow’s Guidelines range “in light of the sentencing factors under Section

3553(a)[,]” the District Court found that range “quite reasonable” and “appropriate” given

the particular facts and circumstances of the case. Id. at 176, 180.

       Nor did the District Court err by applying the parsimony provision only within

Rudow’s Guidelines range. Rudow correctly notes that after determining that the

Guidelines were “reasonable” and “appropriate” in his case, the District Court stated it

would “impose a concept of no more than necessary, leniency” to pinpoint a specific

sentence within Rudow’s broader Guidelines range. App. at 180. But Rudow ignores the

District Court’s earlier statement that it would look generally to the “sentencing factors

under Section 3553(a)” and “try[] to impose a sentence . . . [that is] sufficient, but not

greater than necessary, to comply with the statutory purpose.” Id. at 176. The District

Court then explained why the sentencing range yielded by the Guidelines was reasonable

in light of the applicable § 3553(a) factors. See App. at 176-80. Accordingly, the District

Court committed no procedural error in its application of the parsimony provision.




                                              4
       Rudow next claims the District Court committed procedural error by depriving him

of an “individualized sentencing,” see United States v. Tomko, 562 F.3d 558, 567 (3d Cir.

2009) (en banc), when it placed undue emphasis on Congress’s intent to punish child

pornography offenses harshly. We disagree.

        Under § 3553(a), a district court must consider, among other things, “the need for

the sentence imposed . . . to reflect the seriousness of the offense . . . .” 18 U.S.C.

§ 3553(a)(2)(A). Here, the District Court did just that, citing Congress’s recent increase

of the mandatory minimum set forth in § 2251(e) as evidence that Congress considered

offenses under § 2251(a) to be quite serious. The District Court then proceeded to

conduct the individualized sentencing analysis that Rudow claims was lacking.

Specifically, the District Court considered the impact of Rudow’s crime on the victim; the

circumstances of Rudow’s offense, including the fact that the victim was his daughter and

that the offense involved physical sexual abuse; and, most significantly, Rudow’s

pervasive criminal history. The District Court’s reliance on these factors—all of which

were appropriately considered under § 3553(a)—demonstrates that Congress’s intent to

punish § 2251(a) offenses harshly was but one of several components that influenced the

District Court’s sentencing decision.

       Finally, Rudow claims the District Court committed procedural error when it failed

to consider and respond to several of his arguments. A district court need not “discuss

every argument made by a litigant if an argument is clearly without merit.” United States


                                               5
v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006). The record must demonstrate, however, that

the district court recognized and responded to any non-frivolous arguments advanced by a

defendant at sentencing. United States v. Jackson, 467 F.3d 834, 841 (3d Cir. 2006).

       Rudow first contends the District Court failed to consider his argument for a

downward variance based on the fact that his Guidelines range was unnecessarily close to

the statutory maximum. It is clear from the record, however, that the District Court gave

full consideration to Rudow’s request for a downward variance. Although Rudow

identified mitigating factors that supported a finding of reduced culpability, the District

Court cited the following countervailing considerations: the offense involved a minor

under the age of sixteen; the offense involved sexual acts; Rudow’s conduct had a

significant impact on the victim; and Rudow is the victim’s father. See App. at 177-78.

These factors, coupled with Rudow’s extensive criminal history, supported the District

Court’s conclusion that the Guidelines range was “quite reasonable” despite its proximity

to the statutory maximum. Id. at 176. In sum, the record demonstrates that the District

Court recognized, responded to, and rejected Rudow’s argument that the circumstances of

this offense warranted a downward variance.1



       1
        It is likewise apparent that the District Court considered and rejected Rudow’s
argument that his lifetime of heroin use warranted a downward variance. See App. at 177
(“Now, the argument that this is not the real defendant because he commits these crimes
when he’s under the influence of drugs is not a mitigating factor here, as counsel for the
government appropriately argues.”). Though the District Court’s analysis of this specific
argument was terse, it considered the argument and refused to accept it in light of other
relevant factors under § 3553(a). This determination was not procedurally unreasonable.

                                              6
       Rudow also claims the District Court failed to consider his argument that the

applicable Guideline, § 2G2.1, was not entitled to any deference because it had been

adopted by the Sentencing Commission for improper reasons. Relying principally on

Kimbrough v. United States, 552 U.S. 85 (2007), Rudow contends the District Court was

required to respond to his argument that § 2G2.1 was neither supported by empirical

evidence nor promulgated by the Sentencing Commission after consideration of the

competing goals of sentencing.

       Though Rudow’s counsel raised this argument at sentencing, see App. 168-70, the

District Court did not explicitly address the issue when explaining the rationale behind

Rudow’s sentence. We have held, however, that “Kimbrough does not require a district

court to reject a particular Guidelines range where that court does not, in fact, have a

disagreement with the Guideline at issue.” United States v. Lopez-Reyes, 589 F.3d 667,

671 (3d Cir. 2009). In such circumstances, “a district court is not required to engage in

independent analysis of the empirical justifications and deliberative undertakings that led

to a particular Guideline.” Id.

       Here, the District Court evaluated the facts of Rudow’s case and found the

Guidelines range “quite reasonable” in light of the factors set forth in § 3553(a). App. at




See United States v. Olfano, 503 F.3d 240, 245 (3d Cir. 2007) (affirming sentence
despite cursory treatment of several arguments because “the District Judge apparently
determined that [the] defendant's arguments were simply insufficient to warrant a
below-Guidelines sentence” after considering the applicable § 3553(a) factors).

                                              7
176. Because the District Court concluded that application of § 2G2.1 was appropriate

given the circumstances of Rudow’s case, it was not obligated to evaluate whether the

Guideline provision had been properly adopted by the Sentencing Commission. Lopez-

Reyes, 589 F.3d at 671. Accordingly, the District Court’s failure to address Rudow’s

objections to § 2G2.1 explicitly did not render his sentence procedurally unreasonable.2

                                             B.

       Rudow also claims his sentence was substantively unreasonable because the

District Court placed undue emphasis on a Guideline that was entitled to no deference.

Citing the District Court’s decision to accept the Guidelines range provided by § 2G2.1,

Rudow argues that there “was simply no way the [District Court] . . . could find the

Guidelines ‘reasonable’ and ‘appropriate’ without first . . . engaging in an analysis of how

the Sentencing Commission came to implement the Guideline in question.”

       Rudow misunderstands the District Court’s rationale for relying on the sentencing

range yielded by § 2G2.1. The District Court did not simply defer to § 2G2.1 because it

reflected Congress’s intent to punish child pornography offenses harshly. Rather, the

District Court accepted the applicable Guidelines range because it accurately and



       2
         Nor do we accept Rudow’s contention that the District Court ignored his
argument that a downward variance was warranted because he posed a low risk of
recidivism. Citing Rudow’s extensive criminal history, the District Court found the
“chance of recidivism is high” because “[n]othing, either in terms of incarceration or drug
treatment, has stopped this defendant over a period of his 37 plus years of life.” App. at
178. Though the District Court did not expressly mention a statistical study of recidivism
rates by sex offenders cited by Rudow, it was aware of Rudow’s argument and rejected it.

                                             8
appropriately accounted for the § 3553(a) factors relevant to Rudow’s case, which the

District Court discussed in depth. See App. at 176-80. Because the District Court gave

“rational and meaningful consideration [to] the factors enumerated in 18 U.S.C.

§ 3553(a)[,]” Tomko, 562 F.3d at 568, Rudow’s 326-month sentence was substantively

reasonable.

                                          III.

      Having found no procedural or substantive error, we will affirm the District

Court’s judgment of sentence.




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