from the United States District Court for the District of
Kansas (D.C. No. 6:15-CR-10012-JTM-1)
A. Nichols, Research & Writing Specialist (Melody
Brannon, Federal Public Defender, with her on the briefs),
Office of the Federal Public Defender, Topeka, Kansas, for
W. Hart, Assistant United States Attorney (Thomas E. Beall,
Acting United States Attorney, with him on the brief), Office
of the United States Attorney, District of Kansas, Wichita,
Kansas, for Plaintiff-Appellee.
TYMKOVICH, Chief Judge, McKAY, and BALDOCK, Circuit Judges.
BALDOCK, Circuit Judge.
whether a district court adequately explained a
defendant's sentence is more of an art than a science.
This inquiry, which goes to the ultimate question whether the
defendant's sentence is procedurally reasonable, Gall
v. United States, 552 U.S. 38, 51 (2007),
compels us to ensure that the district court "considered
the parties' arguments" for different sentences-an
obligation that "normally" requires the district
court to "explain why [it] . . . rejected" any
"non-frivolous" arguments-and that the district
court "ha[d] a reasoned basis for exercising [its] own
legal decisionmaking authority, " Rita v. United
States, 551 U.S. 338, 356-57 (2007). But the manner in
which the district court must engage in this analysis is not
static across all cases: "The appropriateness of brevity
or length, conciseness or detail, when to write, what to say,
depends upon circumstances. Sometimes a judicial opinion
responds to every argument; sometimes it does not."
Rita, 551 U.S. at 356.
matter how inherently fluid this area of law may be, we have
held time and time again that a district court does not run
astray of its duty to "consider the parties'
arguments" simply because it does not directly address
those arguments head-on-assuming, that is, that the district
court imposes a within-Guidelines sentence. Indeed, if the
defendant's sentence is within the applicable Guidelines
range, the district court may satisfy its obligation to
explain its reasons for rejecting the defendant's
arguments for a below-Guidelines sentence by
"entertain[ing] [the defendant's]
. . . arguments, " United States v.
Ruiz-Terrazas, 477 F.3d 1196, 1202- 03 & n.4 (10th
Cir. 2007) (emphasis added), and then "somehow
indicat[ing] that [it] did not rest on the guidelines alone,
but considered whether the guideline sentence actually
conforms, in the circumstances, to the [18 U.S.C. §
3553(a)] statutory factors, " United States v.
Martinez-Barragan, 545 F.3d 894, 903 (10th Cir. 2008)
(second alteration in original) (internal quotation marks
omitted). Such a "functional rejection" of a
defendant's arguments-as opposed to an explicit
rejection-is entirely proper. Martinez-Barragan, 545
F.3d at 903 (internal quotation marks omitted).
Defendant Mark Anthony Wireman argues today that his sentence
is procedurally unreasonable because the district court did
not specifically address and reject his arguments for a
downward variance from his within-Guidelines sentence. We
must decide whether the particular argument he made to the
district court-namely, that the Guideline under which he was
sentenced was inherently flawed on policy grounds-warrants an
exception to our long-held rule that the district court was
not required to explicitly address and reject his arguments
in such an instance. Exercising jurisdiction under 18 U.S.C.
§ 3742(a) and 28 U.S.C. § 1291, we hold that it
does not and affirm.
is a frequent sexual offender who, in this particular
instance, pleaded guilty to five counts of distributing child
pornography in violation of 18 U.S.C. § 2252(a)(2) and
one count of possessing child pornography in violation of 18
U.S.C. § 2252(a)(4)(B). In short, and without going into
graphic detail, Defendant emailed one of his friends several
images of child pornography and discussed the images over the
phone with this man for their mutual sexual gratification.
Defendant also emailed this same friend non-pornographic
images of children he personally knew and claimed in these
emails-claims that he now contends were simply fantasies-that
he had sexually abused these children.
prior sexual offenses had also involved children: at the time
he pleaded guilty in this case, Defendant had already been
convicted of five different sexually based crimes involving
minors. In four of the five instances, Defendant actually had
physical sexual contact with a minor. In the fifth instance
he provided a minor with sexually explicit material. In light
of this extensive criminal history, Defendant's
Presentence Investigation Report (PSR) indicated that he had
a criminal history category of IV.
2G2.2 of the United States Sentencing Guidelines (U.S.S.G.),
the applicable sentencing provision for Defendant's
crimes, set the base offense level for Defendant's
sentence at 22. See U.S.S.G. § 2G2.2(a)(2).
Further, five Specific Offense Characteristics under §
2G2.2 applied to Defendant and increased his offense level:
(1) a 2-level increase because the material at issue involved
prepubescent minors, see U.S.S.G. §
2G2.2(b)(2); (2) a 2-level increase because he generically
distributed material involving the sexual exploitation of a
minor, see U.S.S.G. § 2G2.2(b)(3)(F); (3) a
4-level increase because the material involved sadistic,
masochistic, or violent depictions, see U.S.S.G.
§ 2G2.2(b)(4); (4) a 5-level increase because he engaged
in a pattern of activity involving the sexual abuse or
exploitation of a minor, see § 2G2.2(b)(5); and
(5) a 2-level increase because he used a computer or
interactive computer service to distribute the material,
see § 2G2.2(b)(6). Thus, after factoring in a
3-level decrease for Defendant's acceptance of
responsibility, Defendant's total offense level was 34.
Coupled with his category IV criminal history, a total
offense level of 34 corresponded to a guideline range of
210-262 months' imprisonment.
relevant here, Defendant argued in a sentencing memorandum to
the district court that he was entitled to a downward
variance from the guideline range because § 2G2.2 is
inherently flawed. He made three sub-arguments in support of
this claim: first, that § 2G2.2(a)(2)'s base offense
level of 22 is "harsher than necessary" under the
18 U.S.C. § 3553(a) sentencing factors; second, that
courts should be hesitant to rely on § 2G2.2 because the
Sentencing Commission did not depend on empirical data when
drafting § 2G2.2; and third, that the Specific Offense
Characteristics outlined in § 2G2.2 are utilized so
often "that they apply in nearly every child-pornography
case" and therefore fail to distinguish between various
offenders. Defendant then argued in the memorandum that his
individual circumstances-including a traumatizing childhood
where he was repeatedly sexually abused by family members and
the fact that in this instance he shared a relatively small
amount of child pornography with only one of his
friends-warranted a downward variance from this excessive
sentencing, the district court alluded to the memorandum but
did not speak at length about it:
[Defendant's counsel] has filed, on behalf of
[Defendant], a motion for downward variance and a sentencing
memorandum, as well. . . . .
. . . Frankly, I'm struggling with a lot of the issues
that have been raised in . . . [Defendant's
counsel's] memorandum on [Defendant's] behalf.
They're arguments that [Defendant's counsel] has made
before and that I anticipate he will keep making until
they're addressed in a meaningful way by an appellate
court, and probably even after that, if he feels the
appellate court still doesn't have it right. All of that
is to be admired and respected but it may not control at this
this instance, the district court never again mentioned the
sentencing memorandum or Defendant's arguments by name.
But when finally sentencing Defendant, the district court
stated the following:
[T]he really difficult part is trying to determine a sentence
that's sufficient but not greater than necessary, which
essentially means the minimum acceptable sentence in this