United States of America v. Ronald R. Shankey

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 11, 2008
Decided June 17, 2008
Before
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 07‐2235
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
RONALD R. SHANKEY,
Defendant‐Appellant.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 06‐CR‐177‐S‐01
John C. Shabaz,
Judge.
O R D E R
Ronald Shankey, a veteran of the United States Army, pleaded guilty to possessing
child pornography. See 18 U.S.C. § 2252(a)(4)(B). The district court sentenced him to 108
months’ imprisonment. On appeal, Shankey argues that this sentence is unreasonably high
because, he asserts, the court failed to consider his distinguished career in the military.
Because the sentence is reasonable, we affirm.
In September 2006 Shankey’s wife found a stash of sexually explicit photographs of
young girls and DVDs containing similar photographs in a bedroom in her home. Believing
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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these items belonged to her husband—he had been investigated in 2005 for allegedly
distributing child pornography—she reported him to the FBI. Agents searched the
Shankeys’ home pursuant to a search warrant and turned up 1,047 images of child
pornography on DVDs and on Shankey’s computer. A search of Shankey’s computer also
revealed that he had sent e‐mail containing child pornography.
Shankey was indicted for possessing and distributing child pornography, see 18
U.S.C. § 2252(a)(4)(b), (a)(2). He pleaded guilty, pursuant to a plea agreement, to the
possession charge, which carries a statutory maximum sentence of 10 years’ imprisonment,
see 18 U.S.C. § 2252(a)(2), (b)(2); the government dismissed the charge of distributing child
pornography. The probation officer determined that Shankey’s offense level was 33 and
that his criminal history category was I, resulting in a guidelines range of 97 to 120 months
in prison. The probation officer also reported that Shankey had served in the Army for 20
years and, in 2004, received an honorable discharge. While in the Army, Shankey served in
Operation Desert Storm and received numerous awards and honors, including two bronze
stars, a meritorious service medal, a commendation medal, a drill sergeant of the year
award, and a soldier of the year award.
At sentencing the district court accepted the probation officer’s guidelines
calculations. The court then invited counsel to present arguments as to the appropriate
sentence. Shankey’s attorney argued for a sentence at the low end of the guidelines range.
He first emphasized Shankey’s distinguished military career. In particular, he noted that
Shankey had been a respected drill instructor and that he had been named soldier of the
year. Counsel then pointed out that many of Shankey’s problems stemmed from his abuse
of alcohol, but that even before he was indicted, Shankey had pursued treatment for his
addiction. He said that Shankey understood the gravity of his crime, had shown remorse,
and, as demonstrated by his distinguished military service, possessed the commitment and
discipline to turn his life around.
The government’s lawyer simply asked for a sentence within the guidelines range.
The prosecutor pointed out that in 2005 Shankey had been investigated for distributing
child pornography, and instead of using that experience as a wake‐up call, Shankey actually
appeared to increase his use and distribution of child pornography. However, she also
credited Shankey with voluntarily entering a treatment program for alcohol abuse.
The district court then announced the sentence. The court began by acknowledging
that Shankey “did serve in the military for 20 years where he received various awards and
honors.” It then noted that Shankey abused alcohol, a problem that worsened after he
retired from the military and culminated in a conviction for driving under the influence.
The court also noted the 2005 investigation of Shankey’s use of child pornography, that he

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once attempted to fondle a child while drunk, and that he had ignored earlier pleas to seek
help. The court emphasized that children pictured in pornographic photographs are
victimized each time the photographs are viewed and that the possession and viewing of
child pornography encourages the further victimization of children. Additionally, the court
took into account the number and nature of the photographs found. The court concluded
that a 108‐month term of imprisonment—a sentence in the middle of the guidelines
range—and a lifetime of supervised release would adequately protect the community and
deter Shankey from future exploitation of children. Finally, at the close of sentencing the
court remarked:
Having been a member of the Army Corps of Engineers for
almost 10 years . . . I do believe that [Shankey] is a blot on the
service rather than the award winner that he is heralded as
being today.
On appeal, Shankey makes only one argument: that his sentence is unreasonably
high because, he says, the district court refused to consider his distinguished military career.
He insists that the court’s statement at sentencing that “I do believe that he is a blot on the
service rather than the award winner that he is heralded as being today” constitutes a
clearly erroneous finding that Shankey’s achievements were “non‐existent.” According to
Shankey, the court had an obligation to acknowledge his achievements and explain why
they did not entitle him to a lower sentence.
We review sentences for reasonableness, see United States v. Dale, 498 F.3d 604, 608
(7th Cir. 2007), and presume that a sentence within the properly calculated guidelines range
is reasonable, see Rita v. United States, 127 S. Ct. 2456, 2462 (2007); United States v. Mykytiuk,
415 F.3d 606, 608 (7th Cir. 2005). To rebut this presumption a defendant bears the burden of
showing that the sentence imposed is unreasonable. See United States v. Garner, 454 F.3d
743, 751 (7th Cir. 2006).
Shankey’s argument hinges on a misapprehension of the district court’s statements.
Shankey asserts that the district court made a factual finding that he did not have an
accomplished military career. But a court’s statements at sentencing generally are
“observations and assessments” on which the court bases its analysis of the 18 U.S.C.
§ 3553(a) factors; they are not factual findings. United States v. Orozco‐Vasquez, 469 F.3d
1101, 1107 (7th Cir. 2006). Here the court’s statement that Shankey was “a blot on the
service ” was merely an observation about Shankey’s character and an assessment of his
crime; it was not a factual finding. In any event the court opened its discussion by
acknowledging Shankey’s distinguished military career: the court’s later observation did
not reflect its disbelief that Shankey earned his military honors, but rather its

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disappointment that his subsequent criminal behavior overshadowed his distinguished
military record.
Despite Shankey’s attempt to frame his argument as an attack on the district court’s
characterization of his military service, his complaint fundamentally is that the court did not
give enough weight to his past accomplishments. Although a sentencing court must
consider the relevant § 3553(a) factors and related arguments of the parties, it is not required
to accept a defendantʹs assessment of how the factors weigh in the balance. See United States
v. Wachowiak, 496 F.3d 744, 748 (7th Cir. 2007); United States v. Filipiak, 466 F.3d 582, 583 (7th
Cir. 2006). And we will not reverse a sentence just because a defendant disagrees with the
district courtʹs assessment of the relevant factors. See United States v. Laufle, 433 F.3d 981,
988 (7th Cir. 2006). The district court appropriately considered Shankey’s military record
against the gravity of his offense and the other § 3553(a) factors. See United States v.
Gammicchia, 498 F.3d 467, 469 (7th Cir. 2007). It did not give Shankey’s accomplishments the
weight that he urged, but his disagreement with the courtʹs assessment does not
demonstrate that the court failed to consider them or that his sentence is unreasonable. See
United States v. Haskins, 511 F.3d 688, 696 (7th Cir. 2007); Laufle, 433 F.3d at 988.
AFFIRMED.

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