In the

United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 07-2698

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

G ILBERT W. A LLDAY,
                                            Defendant-Appellant.
                         ____________
             Appeal from the United States District Court
      for the Northern District of Indiana, Hammond Division.
              No. 2:06 CR 216-01—Rudy Lozano, Judge.
                         ____________

      A RGUED M AY 5, 2008—D ECIDED S EPTEMBER 5, 2008
                         ____________



 Before C UDAHY, P OSNER, and R OVNER, Circuit Judges.
  R OVNER, Circuit Judge. Gilbert W. Allday pleaded
guilty to one count of violating 18 U.S.C. § 2252(a)(2) by
receiving sexually explicit images and videos of minors
on his home computer. The district court sentenced him
to 97 months imprisonment, the bottom of the 97 to 121-
month range recommended by the United States Sen-
tencing Guidelines. He appeals, arguing that the district
court improperly applied a presumption in favor of the
2                                               No. 07-2698

Guidelines at sentencing. Because we do not believe
the district court applied such a presumption, we affirm
his conviction and sentence.


                             I.
  A devoted and by all accounts loving father and grand-
father, Gilbert Allday is hardly a man one would expect
to find sentenced to eight years in federal prison for
receiving child pornography. Expectations aside, in
January 2004 Allday began looking at pornographic web
sites while surfing the Internet. From there, Allday began
visiting web sites depicting minor children engaged in
sexual acts. By August 2005, Allday had amassed some
541 still images and 82 movie files depicting minors
engaged in sexually explicit conduct.
  Allday pleaded guilty without the benefit of a plea
agreement to violating 18 U.S.C. § 2252(a)(2), which
prohibits the knowing receipt of any image of a minor
engaging in sexual conduct that has been transported in
interstate commerce and “the producing of such visual
depiction involves the use of a minor engaging in
sexually explicit conduct.” That statute carries a five-year
mandatory minimum term of imprisonment. 18 U.S.C.
§ 2252(b)(2). Before sentencing, Allday submitted a sen-
tencing memorandum in which he argued that he should
be sentenced to the five-year mandatory minimum. He
emphasized the fact that he was 64 years old and suffering
from a number of health problems, including sleep apnea
that required nightly monitoring with a machine, a heart
condition, and diabetes. He also argued that his stable
No. 07-2698                                                3

work history (41 years as a Union laborer), military service,
and first-time offender status all militated in favor of a
five-year sentence. Finally, he submitted a number of
letters from his step-children and grandchildren, all
attesting to the fact that he was a loving and supportive
father and grandfather. The district court instead sen-
tenced Allday to 97 months imprisonment, the bottom of
the undisputed 97 to 121-month Guideline range.


                             II.
  On appeal, Allday argues that the district court errone-
ously applied a presumption of reasonableness to the
Guidelines at sentencing. We review de novo the issue
of whether the district court followed the proper sentenc-
ing procedures in the wake of United States v. Booker, 

(2005). United States v. Mendoza, 

, 754
(7th Cir. 2007). Although the Supreme Court in Rita v.
United States approved of an appellate presumption of
reasonableness for sentences within a properly calculated
Guidelines range, the Court clarified that “the sentencing
court does not enjoy the benefit of a legal presumption
that the Guidelines sentence should apply.” 

,
2465 (2007). Instead, the district court is ordinarily
obliged to first consider the presentence report and its
calculation of the Guidelines and then consider the respec-
tive parties’ arguments as to whether the Guidelines
sentence should apply, 

any thumb on the
scale favoring a guideline sentence,” United States v.
Sachsenmaier, 

, 685 (7th Cir. 2007).
4                                               No. 07-2698

  Allday believes several comments that the sentencing
judge made at Allday’s change of plea hearing and at
sentencing demonstrate that the court employed just
such a presumption in favor of a Guidelines sentence. He
points out that at his plea hearing, the district court told
him that if it found the Guideline range “to be fair and
reasonable,” Allday would “be sentenced within that
Guideline range.” Allday also takes issue with the
district court’s conclusion that, given Allday’s offense
and the mandatory minimum sentences associated with
child pornography, the Guidelines were in fact “fair and
reasonable.” Allday argues that the sentencing judge
essentially shifted to him the burden of proving that the
Guidelines sentence was unreasonable. It is true that the
district court can neither presume the Guidelines to be
reasonable nor place the burden on the defendant to
demonstrate the unreasonableness of a Guidelines sen-
tence. But the sentencing transcript as a whole reveals
that the district court here did neither.
  The court considered the reasons advanced by Allday in
support of a lower sentence, and ultimately concluded
that a sentence within the Guidelines range was appropri-
ate. Although the court did not explicitly reference
every sentencing factor in 18 U.S.C. § 3553(a), it is clear
from its discussion that it considered § 3553(a) as well as
Allday’s particular arguments. See, e.g., United States v.
Millet, 

, 680 (7th Cir. 2007) (“Although the
defendant might have liked the court to address each of
his arguments for a below-Guidelines sentence in detail
and list each § 3553(a) factor bearing on the sentencing
determination, the court was not required to do so.”). First,
No. 07-2698                                                    5

the district court considered the nature of Allday’s offense.
The court took note of the large number of pornographic
images Allday had amassed and the resulting real-world
molestation of children in deeming Allday’s offense a
“very, very serious crime.” The court also considered the
need to deter both Allday and others from committing
crimes that “take advantage of our youth,” including
receiving child pornography, regardless of involvement
in its production. Finally, the court considered Allday’s
individual circumstances and concluded that the Guide-
lines were indeed “fair and reasonable.” Specifically, the
court determined that Allday’s age (64) did not warrant
a lower sentence, and in fact might make him more dan-
gerous because society may expect him to be “gentle and
trustworthy.” The court also took into account Allday’s
health problems and concluded that the Bureau of Prisons
could adequately treat his “whole array of problems,”
including his sleep apnea and diabetes.
   Given the court’s discussion at sentencing, it is clear
that it considered Allday’s argument for a lower sentence
and his particular circumstances. It is also clear that the
court recognized that the Guidelines were in no way
binding on its decision. The district court explained at
Allday’s change of plea that before deciding on a sentence,
it would consider “numerous factors.” It also explained
that a Guideline range would be calculated and that if it
found that range “to be fair and reasonable” it would
sentence Allday within that range. Immediately following
that pronouncement, however, the sentencing judge
clarified that, “[i]f I do not find it to be fair and reasonable,
I can go higher or I can go lower than that Guideline
range.” Thus, the court’s reference to the Guidelines
6                                                 No. 07-2698

being “fair and reasonable” is more properly viewed as the
court’s understanding that “the Guidelines, insofar as
practicable, reflect a rough approximation of sentences
that might achieve § 3553(a)’s objectives.” 

. The discussion at sentencing reveals that the
sentencing judge understood his obligation to independ-
ently decide whether the Guideline sentence achieved
the goals of § 3553(a). The record reveals that the sentenc-
ing judge considered each of Allday’s arguments, and the
context of his statement makes clear that no presumption
of reasonableness was employed. Rather, the judge con-
cluded that the reasons advanced by Allday and the
§ 3553(a) factors were insufficient to warrant a sentence
below the 97 to 121-month range. The fact that the judge
concluded after considering Allday’s arguments that the
range was “reasonable” in no way demonstrates that the
court erroneously presumed the range reasonable. See

(taken in context, sentencing
judge’s comment that Guidelines range “was not ‘inappro-
priate’ ” did not signal misunderstanding of legal standard
for imposition of sentence). In sum, we are satisfied that
the district court understood its obligation to consider
Allday’s arguments and make an “individualized assess-
ment based on the facts presented.” Gall v. United States,

, 596-77 (2007). Based on that assessment,
the court concluded that the bottom of the Guideline
range represented an appropriate sentence, and we see
no reason to disturb that conclusion.1


1
  We note that Allday’s argument on appeal is limited to his
claim that the district court committed a procedural error at
                                                (continued...)
No. 07-2698                                             7

                            III.
    We thus A FFIRM Allday’s conviction and sentence.




1
  (...continued)
sentencing by applying a presumption of reasonableness to
the Guidelines. We thus have no occasion to consider the
separate issue of whether his 97-month sentence is in fact
reasonable.


                           9-5-08