In the

United States Court of Appeals
               For the Seventh Circuit

No. 09-2336

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

JASON P APE,
                                            Defendant-Appellant.


           Appeal from the United States District Court
              for the Western District of Wisconsin.
            No. 08 CR 174—Barbara B. Crabb, Judge.



     A RGUED JANUARY 21, 2010—D ECIDED A PRIL 15, 2010




 Before E ASTERBROOK, Chief Judge, and C UDAHY and
M ANION, Circuit Judges.
  C UDAHY, Circuit Judge. Jason M. Pape pleaded guilty
to one count of possession of child pornography, in
violation of 18 U.S.C. § 2252(a)(4)(B) and, on appeal,
challenges his sentence. He was sentenced to 90 months’
imprisonment followed by 20 years’ supervised release.
He now claims that the district court failed to address
his non-frivolous arguments in support of a two-year
2                                                   No. 09-2336

sentence including a plea for leniency based on his per-
sonal history as an upstanding member of his com-
munity and his exceptional family responsibilities for
his children, some of whom have disabilities. In addi-
tion, Pape contends that the district court failed to
address his argument that disparities in the length of
pornography sentences among different districts in
Wisconsin and the purported lack of careful empirical
study underpinning the child pornography Guidelines
suggest that a sentence over two years is too high.
  We affirm because the district court adequately con-
sidered Pape’s arguments about his history and parenting
responsibilities. Moreover, a district court is presumed
to have considered arguments about unwarranted dispari-
ties if, as here, it sentences within or below the Guide-
lines, see United States v. Bartlett, 

, 908 (7th Cir.
2009). And, although district courts are certainly free
to disagree with the child pornography Guidelines as
applied to a particular case as long as the sentence
imposed is reasonable, the district court here did not
abuse its discretion when it implicitly rejected the im-
position of a much lower sentence based on a disagree-
ment with the Guidelines range.


                       I. Background
  Pape has long been active in his Wisconsin community
as a small-business owner and as a trustee for his
church. He is also a father who helped care for his two
children and three others he adopted when he married
their mother, who was dying of cancer. Pape’s stable
No. 09-2336                                             3

caretaking was especially important to his adopted child,
who suffered from autism. Prior to the indictment in
the present case, Pape had no criminal history.
  In 2008, Pape’s daughter reported to the school guidance
counselor that, while completing a homework assign-
ment on her father’s computer, she had discovered
images of child pornography. Using the daughter’s in-
formation, law enforcement executed a warrant and
found images and movies of child pornography on
Pape’s computers and on a thumb drive, including de-
pictions of children being sexually exploited while in
bondage and prepubescent minors engaging in anal
intercourse with adult males. Law enforcement, how-
ever, uncovered no persuasive evidence that he sexually
abused his own children or actually abused any minors.1
A grand jury returned an indictment charging Pape
with possession of child pornography and containing a
request for the forfeiture of his computer equipment.
Pape eventually pleaded guilty to the possession count
and agreed to forfeit the equipment.
  At sentencing, the district court received letters con-
taining testimonials to Pape’s devotion to his children
and to his selflessness towards members of the com-
munity. Pape asked for a sentence reduction based on
the consequences of imprisonment to his family. The



1
  We have noted that even those who merely obtain and
share child pornographic images promote further abuse by
encouraging the creation of child pornography. See United
States v. Goldberg, 

, 672 (7th Cir. 2007).
4                                               No. 09-2336

district court acknowledged Pape’s positive role in his
family and within the community, but also noted that
Pape’s ex-wife had described him as “manipulative,
controlling, emotionally abusive, and obsessed with sex.”
  In support of his other arguments, Pape provided
statistics describing the disparities in Wisconsin in sen-
tencing for pornography crimes. According to the
United States Sentencing Commission, in 2008, the mean
sentence in the Western District of Wisconsin for pornog-
raphy or prostitution offenses was 231.1 months (median
129 months), compared with 122.2 nationally (median
78) and 67.1 in the Eastern District of Wisconsin (median
60). Pape argued that these statistics prove that there are
unwarranted disparities in sentencing across Wisconsin
that the district court should have considered. Lastly,
Pape highlighted concerns with the empirical under-
pinnings of the child pornography Guideline based, in
part, on a 2008 paper by federal defender Troy Stabenow
that was recently discussed by the Seventh Circuit in
United States v. Huffstatler, 

, 622-23 (7th Cir.
2009). The government did not file a response but
instead responded at the hearing to the arguments
raised in the sentencing memorandum.
  Before announcing its sentence, the district court ex-
plained, “I’m not here to balance the good and bad parts
of people and say the good parts of this person out-
weigh the bad parts. I don’t have the authority. I don’t
have the ability. That’s to be done by somebody else. I am
here to sentence what’s bad, bad behavior.” The district
court then described Pape’s positive and negative
No. 09-2336                                                5

personal history and characteristics, explained its con-
cerns with his family’s inability to grasp that he had a
problem with child pornography, and described the
sadism depicted in the images as well as Pape’s online
conversations describing abuse of a close minor female
relative. A few days after the sentence was imposed, the
district court filed a written Statement of Reasons in
which it restated its rationale for imposing its sentence
and described the defendant’s history and characteristics,
his parenting, his works in the community and relevant
offense conduct as well as related conduct. This appeal
followed.


                 II. Standard of Review
  Whether the district court followed proper sentencing
procedure is a legal question reviewed de novo. United
States v. Smith, 

, 872 (7th Cir. 2009). We
must determine that the district court did not commit
procedural error by, for example, failing to properly
calculate the Guidelines range or by failing to consider the
§ 3553(a) factors. See Gall v. United States, 

, 51
(2007). The district court is not required to consider every
argument a defendant makes, but it must address the
defendant’s principal arguments that are “not so weak as
to not merit discussion.” United States v. Villegas-Miranda,

, 801 (7th Cir. 2009) (quoting United States v.
Cunningham, 

, 679 (7th Cir. 2005)). If an argu-
ment of recognized legal merit has a factual basis but
the district court fails to mention it, the court may have
erred by failing to exercise its sentencing discretion. See

.
6                                                 No. 09-2336

  Once a reviewing court has ensured itself that the
sentencing procedure was proper, it reviews the sub-
stantive reasonableness of a sentence for an abuse of
discretion and, on appeal, a correctly calculated, within-
Guidelines sentence is entitled to a presumption of rea-
sonableness. See Rita v. United States, 

, 347
(2007). This presumption is also applied to below-Guide-
lines sentences. See United States v. Wallace, 

,
507 (7th Cir. 2008).


                      III. Discussion
  Neither party objects to the calculation of the ap-
plicable Guidelines range of 97-120 months, which in-
corporates the 10-year statutory maximum for 18 U.S.C.
§ 2252(a)(4)(B). After reviewing the calculation, we have
no reason to doubt that it was correctly computed.
Instead, Pape argues that the district court ignored his
four non-frivolous arguments in support of his recom-
mendation for a two-year sentence. We address each one.


    A. The district court properly addressed Pape’s argu-
       ments concerning his personal history and charac-
       teristics and his family responsibilities.
  First, Pape contends that the district court’s statement,
reproduced above, that it did not have authority to
balance the good and bad parts of him was an admission
that it did not consider the defendant’s history and charac-
teristics in sentencing him. It appears that the district court
was merely stating that it was not authorized to render
No. 09-2336                                                7

final judgment on the defendant’s life and, in effect,
emulate God at the Last Judgment. See United States v.
Christiansen, 

, 576-77 (7th Cir. 2010) (rejecting
an argument regarding a claim that the district court
failed to consider the defendant’s history and charac-
teristics based on similar language used at the sen-
tencing hearing). Moreover, the district court’s oral state-
ment is augmented by the Statement of Reasons the
district court issued after the sentencing hearing. See
United States v. Harris, 

, 854 (7th Cir. 2009)
(evaluating both oral and written statements to deter-
mine whether the sentencing explanation was suffi-
cient); 

(same); cf. United States
v. Baker, 

, 991-92 (7th Cir. 2006) (declining
to limit the appellate court’s review to the written state-
ment of reasons); but see United States v. Omole, 

, 700 (7th Cir. 2008) (finding that the sentence
was unreasonable in part because the district court’s
statements at the sentencing hearing were contradicted
by a subsequent written document that explained the
court’s reasons for deviating from the Guidelines). We
have encouraged district courts to commit their sen-
tencing decisions to paper in certain contexts to “create[ ]
a surer path of communication with the reviewing court.”
See United States v. Higdon, 

, 565 (7th Cir.
2008). We must balance this suggestion with the acknowl-
edgment that a district court must “state in open court
the reasons for its imposition of the particular sentence.”
See 18 U.S.C. § 3553(c); see also Fed. R. Crim. P. 43(a)(3)
(“[T]he defendant must be present at sentencing.”). We
will not disregard the statement made in open court, but
8                                                  No. 09-2336

we read the district court’s Statement of Reasons as an
aid to the interpretation of its oral statement.
  The district court’s Statement evaluates the mixed
picture revealed in the defendant’s history of an active
community member and a good father with no crim-
inal background who also exhibited bad behavior in his
private life. Consequently, the district court gave ex-
plicit consideration to the defendant’s history and charac-
teristics in sentencing Pape as required by § 3553(a)(1)
and committed no procedural error. See United States v.
Jung, 

, 844-45 (7th Cir. 2007); cf. United States v.
Williams, 

, 1085 (7th Cir. 2009) (remanding
for resentencing because the district court ignored de-
fendant’s arguments regarding his mental illness).
Pape’s arguments that the district court’s choice of
words quoted above suggested improper sentencing
procedure are not well taken.
  Second, Pape argues that the district court erred by
failing to consider pertinent policy statements issued by
the Sentencing Commission. See 18 U.S.C. § 3553(a)(5).
He highlights the policy statement U.S.S.G. § 5H1.6, n.1,
which discourages a sentencing court from reducing
the sentence of a defendant with care-taking obligations
unless the defendant has exceptional family responsi-
bilities. See U.S.S.G. § 5H1.6 n.1(B). As Pape concedes,
this Guideline is inapplicable because he was convicted
of an offense under chapter 110 of Title 18. See U.S.S.G.
§ 5H1.6. The district court was certainly authorized to
disregard the referenced part of the policy statement.
There is no policy of the Sentencing Commission that
No. 09-2336                                                       9

militates in favor of giving weight to the caretaking
responsibilities of someone who has been convicted of
possession of child pornography, even if his caretaking
responsibilities are extraordinary.2 The district court
did not need to discuss Pape’s argument grounded in
§ 3553(a)(5) as “potentially meritorious.” See Cunning-

.
  The government acknowledges, however, that the
district court retained discretion to consider Pape’s care-
taking responsibilities as part of its § 3553(a) analysis.
See United States v. Schroeder, 

, 755-56 (7th
Cir. 2008) (“Although the concept of departures has
been rendered obsolete in post-Booker sentencing the


2
  Pape highlights several district court memoranda and orders
in which a court considered a downward adjustment for
family responsibilities in child pornography cases to argue
that his policy arguments merited discussion. The Prosecutorial
Remedies and Tools Against the Exploitation of Children
Today Act of 2003 (PROTECT), amended the Guidelines to
include the proviso that § 5H6.1 does not apply to those con-
victed of offenses under chapter 110 of title 18, such that those
district court cases are not interpreting the same Guidelines
as the district court in the present appeal. See Pub. L. No. 108-
21 § 401(b)(4), 117 Stat. 650, 669. See United States v. Bailey, 

, 1091, 1100 (D. Neb. 2005) (applying the
2001 Guidelines and noting that “[h]ad I been required to
apply the 2003 law, and the Guidelines as amended in relation-
ship thereto, one wonders whether this case would have
warranted a variance or deviation from the advisory Guidelines
since a departure would have been otherwise prohibited.”);
United States v. Artim, 

, 369-70 (D. N.J. 1996).
10                                                No. 09-2336

district court may apply those departure guidelines by
way of analogy in analyzing the section 3553(a) fac-
tors.”) (internal citations omitted); United States v. Millet,

, 680 (7th Cir. 2007) (remanding to ensure
that the district court imposed its sentence with the
understanding that it had the discretion to consider
the defendant’s family circumstances). As noted above,
however, the district court heard Pape’s arguments
regarding his responsibility for his children and the
special difficulties of raising a child with autism. In
sentencing Pape, the district court mentioned his
parenting responsibilities and his failure to convince
his family that he had a problem with child pornography.
Cf. United States v. 

(remanding
for resentencing because the district court explicitly
rejected consideration of any hardship on the defendant’s
family). Pape’s procedural arguments for the district
court’s consideration of his history, characteristics and
parenting responsibilities are unavailing given the
district court’s consideration and discussion of these
subjects in shaping its sentence.


  B. The district court properly considered Pape’s
     concerns with the child pornography Guidelines.
  Pape urged the district court to disregard the child
pornography Guidelines because, he argues, like the
crack Guidelines discussed in Kimbrough v. United States,

(2007), they do not reflect the result of careful
study based in empirical analysis and national experience.
See, e.g., 

(collecting district
No. 09-2336                                               11

court cases relying on this rationale). As Pape notes,
we recently rejected an argument that the child pornogra-
phy Guidelines were invalid because of these purported
flaws, and we therefore upheld Guideline § 2G2.2 as a
starting point for sentencing those convicted of offenses
involving child pornography. See 

(noting
that the crack guidelines discussed in Kimbrough are still
valid and a district court’s within-crack-guidelines sen-
tence may be reasonable). We left open the question
whether, by analogy to Kimbrough, the district court has
the discretion to disagree with the child pornography
Guidelines on policy grounds. See 

  Pape’s argument is not the one we rejected in
Huffstatler. Instead, he argues that the district court
failed to consider his “non-frivolous argument that [the]
Guideline produces an unsound sentence in the par-
ticular circumstances of the case.” United States v. Aguilar-
Huerta, 

, 367-68 (7th Cir. 2009) (holding that
a district court is free to leave for appellate review an
argument that the guideline is universally invalid). As
the parties note, it is well accepted that courts may
deviate from the Guidelines in particular cases, and
that the district court should ensure that its sentences
reflect the § 3553(a) factors. See 

. As
we have recently explained, more broadly, “[w]e under-
stand Kimbrough and Spears to mean that district judges
are at liberty to reject any Guideline on policy grounds-
though they must act reasonably when using that
power.” United States v. Corner, No. 08-1033, ___ F.3d ___,

, at *2 (7th Cir. Mar. 17, 2010) (en banc)
(citing, inter alia, Kimbrough and Spears v. United States,

, 843-44 (2009)).
12                                             No. 09-2336

  In the present case, the district court was aware of its
discretion to vary based on disagreements with the Guide-
line as it applied to Pape. At sentencing, Pape argued
that the child pornography Guidelines had “gone through
the roof in direct response to Congressional politically-
based directives.” And the district court interjected:
“[p]assed by Congress,” to which Pape responded:
     I understand, but not mandatory minimums. Congress
     could have passed a statute. They didn’t. Instead they
     directed the Sentencing Commission to step outside
     the Sentencing Commission’s role. I also know, Your
     Honor, and I don’t know if we need to get into a
     specific recitation of cases, but I am aware of other
     cases that Your Honor has sentenced below the
     child pornography guidelines based specifically on
     this argument. So it’s not a Congressional directive
     that the Court has to do it.
  Consequently, Pape acknowledged that the district
court understood its own discretion. In imposing
Pape’s sentence, the court implicitly declined to exercise
that discretion and to accept Pape’s argument that defi-
ciencies in the Guideline meant that he should receive
a two-year sentence. See, e.g., United States v. Poetz, 

, 838-40 (7th Cir. 2009) (holding that when it is
apparent from the record that the district court understood
the defendant’s argument, it may implicitly reject it,
especially when the sentence is below-Guidelines). Instead,
the district court sentenced Pape based on his history, his
possible failure to admit to his family that he had com-
mitted the offenses charged, and the particular circum-
No. 09-2336                                                13

stances of his offense. In short, the district court applied
the § 3553(a) factors as it was required to do and thought-
fully imposed a sentence that was reasonable in light of
the relevant statutory factors. It committed no error by
declining to explain its precise position on the general
debates regarding the child pornography Guideline, but
confined its discussion to the defendant at hand and
sentenced accordingly and reasonably.


  C. The district court adequately considered unwar-
     ranted disparities in pornography sentences.
  Pape argues that the district court failed to consider
his evidence of an unjustified difference in the length of
sentences across districts among defendants convicted of
pornography crimes. As noted, Pape submitted data
from the Sentencing Commission. The district court
did not mention these statistics in either its sentencing
hearing or in the subsequent Statement of Reasons, al-
though it explained that it was sentencing in accordance
with the statutory factor that requires consideration of
unwarranted disparities. It then imposed a sentence
below the Guidelines range and, according to the Sen-
tencing Commission’s then-recent statistics, below the
national median pornography sentence.
  We have recently held, citing observations made by the
Supreme Court in Gall, that a district court judge neces-
sarily considers unwarranted disparities among de-
fendants when it decides to impose a within-Guidelines
sentence. See 

(citing 

). Likewise, in its Statement of Reasons, the district
14                                            No. 09-2336

court acknowledged its responsibility pursuant to
§ 3553(a)(6) to avoid unwarranted disparities among
similarly situated offenders. M oreover, Pape presented
no analysis to explain the disparities—perhaps the dif-
ferences were justified because of differences in the
types of charges or other differences among defendants.
Without more, Pape’s argument lacks substance. As we
have highlighted, only unwarranted disparities are imper-
missible in sentencing. See United States v. Statham, 

, 556 (7th Cir. 2009). Here, where the district
court applied a slightly below-Guidelines sentence and
specifically noted that it imposed a sentence to achieve
parity with similarly situated offenders, it did not err
by declining to address in depth Pape’s argument re-
garding the differences in sentences.
  Given the district court’s consideration of Pape’s argu-
ments and its articulation of a sentence based on the
§ 3553(a) factors, we have no reason to conclude that it
committed procedural error or imposed an unreasonable
sentence when it sentenced him below the applicable
Guidelines range. The judgment of the district court is
therefore
                                               A FFIRMED.




                          4-15-10