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United States v. Wade

United States Court of Appeals, Seventh Circuit

May 18, 2018

United States of America, Plaintiff-Appellee,
Jason M. Wade, Defendant-Appellant.

          Argued April 24, 2018

         Appeal from the United States District Court for the Southern District of Illinois. No. 17-CR-40028-JPG-1 - J. Phil Gilbert, Judge.

          Before Bauer, Easterbrook, and Kanne, Circuit Judges.

          Per Curiam.

         Jason 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 affirm.

         I. Background

         FBI 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.

         Judge 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."

         Judge 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.

         After 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 conviction."

          II. Analysis

         On 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)).

         Wade 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.

         We do 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 ...

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