Argued May 21, 2013.
Stephanie N. Richter, Angela Scott, Office of the United States Attorney, Fairview Heights, IL, for Plaintiff-Appellee.
Phillip J. Kavanaugh, III, Todd M. Schultz, Office of the Federal Public Defender, East St. Louis, IL, for Defendant-Appellant.
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 pornography, 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 tat, in imposing sentence, the district court failed to address one of his principal, nonfrivolous arguments
in support of a lower sentence. For the reasons set forth in the following opinion, we affirm the judgment of the district court.
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 calculation, neither of which he renews on appeal. At sentencing, his counsel also argued for a below-guidelines sentence " principally 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 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 medication 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 sentence of 20 years, and at the end of that term he will, because of the nature of this case, he will be evaluated 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 merits or likelihood of ...