April 24, 2018
from the United States District Court for the Southern
District of Illinois. No. 17-CR-40028-JPG-1 - J. Phil
Bauer, Easterbrook, and Kanne, Circuit Judges.
Wade pled guilty for a second time to possessing child
pornography. The district judge imposed a sentence of 132
months' imprisonment, though the mandatory minimum and
guidelines recommendation was 120 months. Wade argues that
the judge procedurally erred by not addressing Wade's
mitigation arguments or explaining the upward variance. In
the alternative, he argues that his sentence was
substantively unreasonable. Because the judge responded to
Wade's mitigation arguments, adequately justified
Wade's sentence, and did not abuse his discretion, we
agents seized Wade's computer when executing a search
warrant, and they discovered over 2000 images of child
pornography. Wade pled guilty to one count of possessing
child pornography, 18 U.S.C. §§ 2252A(a)(5)(B), 2.
Under U.S.S.G. § 2G2.2(b), his base offense was
increased 13 levels due to the number and the especially
odious content of the images. But Wade's offense level
was immaterial because this was his second conviction for the
same offense. Wade's total offense level of 28 and
criminal history category of II would generally have
prescribed a recommended sentence of 87 to 108 months'
imprisonment, but because Wade committed a repeat offense,
his guidelines recommendation became the statutory minimum
term of imprisonment: 120 months.
Gilbert presided over Wade's 2008 sentencing for his
first conviction for possessing child pornography and varied
downward in the sentence he imposed. The guidelines
recommendation for that offense was 120 months'
imprisonment, but the judge imposed a sentence of just 36
months' imprisonment and 5 years' supervised release.
After Wade completed 3 years of supervised release, Judge
Gilbert granted Wade an early termination because he thought
Wade "had learned to abide by the law."
Gilbert also presided over Wade's second sentencing, the
one on appeal here. At the sentencing hearing, the government
recommended a sentence of at least 10 years' imprisonment
(the mandatory minimum), but suggested that the judge vary
upward from that because the images were very disturbing,
because this was Wade's second conviction, and because
the judge had previously given Wade "a huge break."
Wade argued that the mandatory minimum term was appropriate
because: (1) his addiction to pornography and his stress
caused his recidivism, (2) the guidelines accounted for the
reasons the government gave for varying upwards, and (3) he
had support from family members, who were now better informed
about his addiction.
hearing these arguments, Judge Gilbert imposed a sentence of
132 months' imprisonment followed by 10 years'
supervised release. Before issuing the sentence, the judge
observed that this was Wade's second conviction for the
same offense. He remarked, "fool me once, shame on you;
fool me twice, shame on me, " and noted that he had
given Wade "two breaks"-varying downward in his
first sentence and then terminating his supervised release
two years early. The judge then acknowledged that child
pornography is an addiction. But, he continued, some people
"handle the addiction" so they do not reoffend.
Because Wade had not adequately managed his, the judge was
concerned Wade would offend again. Finally, the judge
observed that "not a single 3553(a) factor" favored
Wade, noting that it was sad Wade had not previously relied
on his family's support. On the Statement of Reasons
form, under the section, "18 U.S.C. § 3553(a) and
other reason(s) for a variance, " Judge Gilbert checked
the box, "Issues with criminal history, " and wrote
"Leniency provided for previous federal
appeal Wade first argues that the district judge procedurally
erred when he failed to address Wade's principal
mitigation arguments. See United States v. Fogle,
825 F.3d 354, 357 (7th Cir. 2016). At sentencing, a judge
must address the parties' principal arguments, and
"where a defendant's principal argument is 'not
so weak as not to merit discussion, ' the court must
'explain its reason for rejecting that
argument.'" United States v. Reed, 859 F.3d
468, 472 (7th Cir. 2017) (quoting United States v.
Schroeder, 536 F.3d 746, 755 (7th Cir. 2008)).
argues that the district judge did not address his strongest
mitigating argument-that the guidelines range already took
into account Wade's recidivism and previous sentence. In
Wade's view, the mandatory minimum acted as a "de
facto upward variance, " pushing his guidelines range of
87 to 108 months to 120 months.
not "draw a bright line to tell district judges when
they have said enough, but 'we try to take careful note
of context and the practical realities of a sentencing
hearing. District judges need not belabor the
obvious.'" Reed, 859 F.3d at 472 (quoting
United States v. Castaldi, 743 F.3d 589, 595 (7th
Cir. 2014)). And in this context, it is obvious why the judge
did not restate a particular mitigation argument. To the
judge, Wade's recidivism was an aggravating
factor under 18 U.S.C. § 3553(a), not a mitigating one,
and "not a single § 3553(a) factor" favored
Wade. The judge also addressed Wade's two other
mitigating arguments-that he was suffering from an addiction
and that he had family support. There was no procedural error