Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 09 CR 441-1-William J. Hibbler, Judge.
The opinion of the court was delivered by: Posner, Circuit Judge.
Before POSNER, ROVNER, and WOOD, Circuit Judges.
The defendant pleaded guilty to
federal crimes of transporting, receiving, and possessing child
pornography and was sentenced to 360 months in prison. 18 U.S.C. §§
2252A(a)(1), (a)(2)(A), (a)(5)(B). The guidelines sentencing range was
360 months to life; the statutory minimum sentence was 180 months; he
was 44 years old when sentenced. His appeal challenges his sentence on
several grounds, of which the one most
emphasized by defense counsel is that the district court improperly
failed to consider her argument that the defendant had had "diminished
capacity" to avoid committing the crimes, a ground recognized by the
sentencing guidelines as a possible justification for a lower
sentence. U.S.S.G. § 5K2.13; United States v. Miranda,
F.3d 785, 792 (7th Cir. 2007); United States v. Cunningham, 429
F.3d 673, 679 (7th Cir. 2005); United States v. Utlaut, 497 F.3d 843,
845 (8th Cir. 2007).
When arrested, the defendant had in his possession some 2000 downloaded photographs and videos of prepubescent girls, most between 4 and 9 years old, engaged in sexual activities; many of the photographs and videos depicted violent sexual assaults on the children. Ten years earlier he'd been convicted in an Illinois state court, and served a year in prison, for an offense involving child pornography-and more: he had made a video of himself cutting off a 14-year-old girl's panties and touching her vagina. He had been molesting her since she was 10.
The defendant's sexual interests focus on prepubescent girls wearing panties (his screen name was Pantielover); he is also attracted to adult women, at least when they are wearing pantyhose, but he has never had a girlfriend or, apparently, any adult sexual relationship. He has been diagnosed with "pedophilia, sexually attracted to females, nonexclusive type."
Diminished capacity in federal sentencing law refers to cognitive or psychological limitations that fall short of insanity, severe mental retardation, or dementia but contributed in one of two ways (or both) to the crime for which the defendant is being sentenced: by reducing-though not eliminating-his ability to appreciate the wrongfulness of his acts, or by reducing his ability to avoid committing them. U.S.S.G. § 5K2.13 Application Note 1; United States v. Roach, 296 F.3d 565, 568 (7th Cir. 2002). It is thus an attenuated version of the standard insanity defense.
Why diminished capacity in this sense (or senses) should be a mitigating factor in sentencing is obscure. The diminution makes a defendant more likely to repeat his crime when he is released from prison. That is especially so when the crime involves compulsive behavior, such as behavior driven by sexual desire. United States v. Rogers, 587 F.3d 816, 821 (7th Cir. 2009); United States v. Cunningham, 103 F.3d 553, 556 (7th Cir. 1996); Doe v. Sex Offender Registry Board, 857 N.E.2d 473, 482-83 (Mass. 2006); People v. Earle, 91 Cal. Rptr. 3d 261, 282-83 and n. 16 (App. 2009). Such behavior requires active resistance by the person tempted to engage in it, if it is to be avoided; and diminished capacity weakens the ability to resist. One of the defendant's experts opined that the defendant's ability to resist could be strengthened substantially with medication and therapy. But both defense experts believed, and defense counsel argued, that he wouldn't get proper treatment in prison. That is very damaging to the argument that he won't recidivate, since by virtue of the statutory minimum he will spend many years in prison and when released may be unable to resist his criminal impulses because his condition will not have been treated effectively in prison.
From a "just deserts" standpoint, diminished capacity argues for a lighter sentence, but from the standpoint of preventing recidivism it argues for a heavier one. The heavier sentence may not deter a criminal from repeating his crime when he is released (that is implied by saying he has diminished capacity), but it will reduce his lifetime criminal activity by incapacitating him for a longer time than if he received a lighter sentence.
How to choose? The sentencing guidelines do not embody a coherent penal philosophy. United States v. Blarek, 7 F. Supp. 2d 192, 203-04 (E.D.N.Y. 1998); Paul J. Hofer & Mark H. Allenbaugh, "The Reason behind the Rules: Finding and Using the Philosophy of the Federal Sentencing Guidelines," 40 Am. Crim. L. Rev. 19, 26-36 (2003). "The [Sentencing] Commission's conclusion can be summarized thus: since people disagree over the aims of sentencing, it is best to have no rationale at all." Andrew von Hirsch, "Federal Sentencing Guidelines: Do They Provide Principled Guidance?," 27 Am. Crim. L. Rev. 367, 371 (1989). In the case of diminished capacity the guidelines have embraced a just-deserts theory; but why it has done so-why it has in this instance elevated just-deserts considerations over the interest in preventing recidivism-is not explained. In any event, under the Booker regime a sentencing judge can adopt his own penal philosophy. United States v. Corner, 598 F.3d 411, 416 (7th Cir. 2010) (en banc); United States v. Herrera-Zuniga, 571 F.3d 568, 585 (6th Cir. 2009). And so he can disregard the guidelines' classification of diminished capacity as a mitigating factor, regard it as an aggravating factor, or regard it as a wash.
The defendant argues that the district judge ignored the issue of diminished capacity. In response to a harangue by defense counsel and a detailed response to it by the prosecutor, all the judge said was that "the Court was struck with Mr. Garthus' somewhat troubled upbringing. There are many persons in our society who have struggles . . . . Certainly the Court takes note that there may be issues which have not been properly addressed with regards to Mr. Garthus. The Court is aware of his physical ailments . . . . [Defense counsel is] convinced that Mr. Garthus with the proper treatment will not reoffend . . . but the Court does not share it. I don't think there is any guarantee that anyone can give that this urge which Mr. Garthus has will not re-emerge once he is given the opportunity to do so . . . . The Court believe[s] that the Guidelines are reasonable under the circumstances. And the Court can find no justification to depart from the recommended guidelines." (The judge's mention of "physical ailments" was in reference to a different mitigation argument made by defense counsel.)
Ordinarily a sentencing judge's failure to address the defendant's principal argument for lenience would be a reversible error. United States v. Villegas-Miranda, 579 F.3d 798, 801-02 (7th Cir. 2009); United States v. Cunningham, supra, 429 F.3d at 679; United States v. Olhovsky, 562 F.3d 530, 547, 552 (3d Cir. 2009); see generally Rita v. United States, 551 U.S. 338, 356-57 (2007). But diminished capacity was not argued by defense counsel at the sentencing hearing; the term was not even mentioned, though the defendant's cognitive and psychiatric deficiencies were; and it is unsubstantiated.
The defendant suffers from attention-deficit disorder/ hyperactivity disorder, dyslexia, depression, and anxiety. He also, according to one of the defense experts, suffers from "chronic and persistent intellectual or cognitive limitations." He has an IQ of 83. Mean IQ is of course 100, and the standard deviation is 15. This means that two-thirds of the population have an IQ between 85 and 115, and 16.67 percent (one-half of one-third) have an IQ under 85. A person with an IQ of 83 is not bright, though he is not intellectually disabled either. But neither defense expert, nor defense counsel in either her sentencing memorandum or her lengthy remarks at the sentencing hearing, mentioned any evidence that the defendant's mental condition had impaired his ability either to have appreciated the wrongfulness of what he was doing or to have refrained from doing it. The experts opined that the defendant's cognitive and psychiatric problems might have contributed to his pedophilia, for example by making him too shy to form a sexual relation-ship with an adult-although it was never explained why that would generate a desire for child pornography rather than adult pornography. But they didn't say those problems had impaired his understanding of the wrongfulness of his behavior or made it more difficult for him than for a person without his cognitive and psychiatric problems to control his desire to collect illegal pornographic images.
At the sentencing hearing, where as we said no one mentioned "diminished capacity," defense counsel went off in other directions, some distinctly unpromising, as when she repeatedly referred to her client as being the "victim." At one point she called him "a victim in the most extreme sense." As a child he had been beaten and called stupid by his father, and his mental problems had never been treated or even diagnosed before his arrest. He also has a heart condition. But he has never been sexually abused and his ...