In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-2622

U NITED S TATES OF A MERICA,
                                              Plaintiff-Appellee,
                               v.

M ARK C. H UFFSTATLER,
                                           Defendant-Appellant.


           Appeal from the United States District Court
                 for the Southern District of Illinois.
       No. 3:07-cr-30167-JPG-DGW-1—J. Phil Gilbert, Judge.



     A RGUED JANUARY , 28 2009—D ECIDED A PRIL 6, 2009




 Before B AUER, R IPPLE and T INDER, Circuit Judges.
  P ER C URIAM. Mark Huffstatler pleaded guilty to pro-
ducing child pornography, and the district judge im-
posed an above-guidelines sentence. Huffstatler seeks a
remand for resentencing, contending that his sentence
is unreasonable because the child-pornography sen-
tencing guidelines are not the product of empirical re-
search. We affirm.
2                                                No. 08-2622

                     BACKGROUND
  Huffstatler hired a 14-year-old boy, T.P., to help with
some household chores, but things turned unsavory
when Huffstatler asked T.P. to take off his shirt and
loosen his shorts for pictures that Huffstatler planned to
sell on the internet. T.P. initially agreed, but after a few
photos he asked to leave. Huffstatler refused. Removing
T.P.’s pants, Huffstatler manipulated the boy’s penis
until it was erect and took 16 photographs of him.
  Huffstatler pleaded guilty to producing child pornogra-
phy, see 18 U.S.C. § 2251(a), and the district judge calcu-
lated his sentencing-guidelines range. The base offense
level was 32, see U.S.S.G. § 2G2.1, which the court in-
creased to 38 because T.P. was between the ages
of 12 and 16 years, see U.S.S.G. § 2G2.1(b)(1)(B), Huffstatler
had sexual contact with T.P., see U.S.S.G. § 2G2.1(b)(2)(A),
and Huffstatler intended to distribute the pictures, see
U.S.S.G. § 2G2.1(b)(2)(A). The judge ultimately reduced
Huffstatler’s offense level to 35 because he quickly
pleaded guilty. See U.S.S.G. § 3E1.1(a) & (b).
  Turning to criminal history, the district court observed
that Huffstatler had victimized many others. First, there
were his violent felonies: he served four years in prison
after pleading guilty to sexually assaulting his 13-year-old
adopted son (in exchange the state prosecutor dismissed
charges that Huffstatler had raped his stepsons, who
were then six and eight years old), and he was convicted
of unlawful restraint for locking an 18-year-old man in
the trunk of his car. There were also repeated attempts
at sexual contact with teenage boys: in 1999 a 13-year-
No. 08-2622                                                 3

old told the police that Huffstatler had propositioned
him and, mere months before the incident with T.P., a 14-
year-old reported that Huffstatler tackled and groped
him as he fled Huffstatler’s home. Huffstatler’s previous
violent felonies qualified him as a career offender with
a Category VI criminal history, see U.S.S.G. § 4B1.1, and
his sexual-assault conviction also triggered a 25-year
statutory minimum sentence, see 18 U.S.C. § 2251(e). Thus,
although Huffstatler’s offense level and criminal
history category intersected at 292 to 365 months’ im-
prisonment, the district court correctly noted that the
effective guidelines range was 300 to 365 months.
  Huffstatler urged the district court to sentence him to
the statutory minimum prison term, 25 years. After
evaluating the factors laid out in 18 U.S.C. § 3553(a),
the sentencing judge instead concluded that an above-
guidelines sentence was necessary for four reasons: to
deter Huffstatler (as his prior short sentences had not)
and other would-be predators; to protect society from
Huffstatler’s incorrigible recidivism; to reflect the serious-
ness of his offense and its effect on his victim; and to
allow time for Huffstatler to seek treatment. The court
sentenced Huffstatler to 450 months’ imprisonment.


                        ANALYSIS
  On appeal, Huffstatler argues that the guidelines for
crimes involving sexual exploitation of a minor were
crafted without the benefit of the Sentencing Com-
mission’s usual empirical study and so are faulty. He
concludes that the district judge was obligated to sen-
4                                                No. 08-2622

tence him below the allegedly flawed guidelines range
and, consequently, that his sentence is unreasonable.
Because Huffstatler did not raise this argument at sen-
tencing, we review for plain error and may, in our discre-
tion, vacate the district court’s sentence only if there
was an error that is plain and that affects Huffstatler’s
substantial rights. See United States v. Pree, 

,
868-69 (7th Cir. 2005). We would exercise that discretion
only if the error seriously affects the fairness, integrity
or public reputation of judicial proceedings. See United
States v. James, 

, 709 (7th Cir. 2006).
  Huffstatler correctly submits that the child-pornography
sentencing guidelines, U.S.S.G. §§ 2G2.1-.2, like the drug
guidelines at issue in Kimbrough v. United States, 

(2007), are atypical in that they were not based on
the Sentencing Commission’s nationwide empirical study
of criminal sentencing. “In the main, the Commission
developed Guidelines sentences using an empirical
approach based on data about past sentencing prac-
tices. . . .” 

. But the guidelines
for child-exploitation offenses were not crafted this way.
Instead, “[m]uch like policymaking in the area of drug
trafficking, Congress has used a mix of mandatory mini-
mum penalty increases and directives to the Commission
to change sentencing policy for sex offenses.” U.S. Sentenc-
ing Comm’n, Fifteen Years of Guidelines Sentencing: An
Assessment of How Well the Federal Criminal Justice System is
Achieving the Goals of Sentencing Reform 72-73 (November
2004), available at http://www.ussc.gov/15_year/15_year_
study_full.pdf.
No. 08-2622                                                       5

   Furthermore, since it was the Commission’s failure to
exercise its “characteristic institutional role” that per-
suaded the Supreme Court that district courts possess
the discretion to sentence below the crack guidelines
based on policy disagreements, see 

, Huffstatler contends that sentencing
judges possess the same discretion when dealing with
the child-exploitation guidelines.1 This argument was
developed by federal defender Troy Stabenow in a 2008
paper, Deconstructing the Myth of Careful Study: A Primer
on the Flawed Progression of the Child Pornography Guide-
lines 27-32 (July 3, 2008), http://www.fd.org/pdf_lib/
child%20porn%20july%20revision.pdf. Over the past
year, district courts have repeatedly cited Stabenow’s
article for the proposition that the child-pornography
guidelines’ lack of empirical support provides sen-
tencing judges the discretion to sentence below those
guidelines based on policy disagreements with them. E.g.,
United States v. Shipley, 

, 744-46 (S.D.
Iowa 2008) (determining that because the guidelines’
“advice in this [child-exploitation] case is less reliable
than in other cases where the guidelines are based on



1
   The First Circuit has already extended Kimbrough to fast-track
departures, another section of the guidelines that does not
reflect the Commission’s exercise of its “characteristic institu-
tional role.” United States v. Rodriguez, 

, 226-29
(2008). On the other hand, the Sixth Circuit has noted that “[t]he
extent to which a district court may offer a wholesale dis-
agreement with a guideline as the basis for variance remains
unclear. . . .” United States v. Grossman, 

, 597 (2008).
6                                               No. 08-2622

study and empirical data,” 90 months’ imprisonment was
more appropriate than guidelines range, 210 to 240
months); United States v. Hanson, 

,
1008-12 (E.D. Wis. 2008) (sentencing defendant whose
guidelines range was 210-262 months’ imprisonment to
72 months); United States v. Baird, 

, 894-
96 (D. Neb. 2008) (imposing sentence of 24 months, al-
though guidelines range was 46 to 57 months); United
States v. Grober, ___ F. Supp. 2d ___, 

(D.N.J. Dec. 22, 2008) (sentencing defendant to 60 months’
imprisonment, though guidelines range was 235 to
293 months).
  But we are confronted with a different question.
Huffstatler is not arguing, as in United States v. Taylor,

, 748 (7th Cir. 2008), that the district court
erroneously felt bound by the guidelines range and
might have sentenced him below the range had the
court known of its discretion to do so. Nor could he—after
all, the judge sentenced Huffstatler above the guide-
lines range. Huffstatler therefore expands the scope of
his attack and attempts to invalidate the child-exploitation
guidelines, arguing that district judges not only may
impose below-guidelines sentences based on their
policy disagreements with the child-exploitation guide-
lines, they must. And, Huffstatler concludes, since a
reasonable sentence requires the district court first to
determine the appropriate (valid) guidelines range,
see Rita v. United States, 

, 2465 (2007);
United States v. Robinson, 435 F.3d, 699, 700-01 (7th Cir.
2006), his sentence must be unreasonable.
No. 08-2622                                              7

  Even assuming that district courts may exercise their
discretion based solely on policy disagreements with
the child-exploitation guidelines (an issue we need not
decide here), Huffstatler’s argument is without merit.
Despite Kimbrough, the crack guidelines, to which he so
energetically analogizes those for child-exploitation,
remain valid. See United States v. Roberson, 

,
995 (8th Cir. 2008). And judges are not required to
disagree with the crack guidelines; a within-guidelines
sentence may be reasonable. Id.; see also United States
v. Lopez, 

, 516 (7th Cir. 2008) (affirming a
within-guidelines sentence for possession with intent to
distribute crack); United States v. Hart, 

, 913
(8th Cir. 2008) (same). The child-exploitation guidelines
are no different: while district courts perhaps have the
freedom to sentence below the child-pornography guide-
lines based on disagreement with the guidelines, they
are certainly not required to do so. Because the district
court was not obligated to sentence Huffstatler below the
range recommended by the valid sentencing guidelines,
Huffstatler cannot establish plain error.
  Moreover, Huffstatler’s sentence, though above the
guidelines range, was reasonable. The sentencing judge
correctly calculated the guidelines range and then re-
viewed the § 3553(a) factors—including recidivism,
deterrence, seriousness of the crime, and time for
treatment—in some detail before announcing that a longer
sentence was justified. We require nothing more. See
United States v. McIntyre, 

, 483-84 (7th Cir.
2008).
8                                              No. 08-2622

    Accordingly, we A FFIRM Huffstatler’s sentence.




                            4-6-09