Judy Shepard v. Pete Geren

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3569
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Alan Suschanke, *
*
Appellant. *
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Submitted: April 14, 2011
Filed: June 13, 2011
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Before RILEY, Chief Judge, BENTON and SHEPHERD, Circuit Judges.
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RILEY, Chief Judge.
Alan Suschanke pled guilty to possessing child pornography, in violation of 18
U.S.C. § 2252A(a)(5)(B) and § 2. Suschanke and his adult son, Matthew, shared an
IBM computer containing more than 600 images of child pornography. The
Suschankes’ child pornography collection consisted of video clips and still pictures
of prepubescent minors with some engaging in sadistic and masochistic conduct.
After calculating an advisory United States Sentencing Guidelines (Guidelines) range
of 78 to 97 months of imprisonment (level 28, category I), the district court varied1
The Honorable Carol E. Jackson, United States District Judge for the Eastern1
District of Missouri.

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downward 18 months from the bottom of the range and sentenced Suschanke to 60
months imprisonment. Suschanke appeals his sentence, which he asserts is
procedurally and substantively unreasonable.
Suschanke contends his sentence is procedurally unreasonable because the
district court failed to explain adequately why a 60-month sentence was “sufficient
but not greater than necessary” to accomplish the goals of 18 U.S.C. § 3553(a)(2) (the
parsimony principle) or account for the disparity between Suschanke’s 60-month
sentence and his son’s 24-month sentence. Suschanke emphasizes he and his son
pled guilty to possessing the same child pornography collection.
Suschanke asserts the district court’s 60-month sentence is substantively
unreasonable because (1) the sentence produced an unwarranted sentencing disparity;
(2) the district court “punished [Suschanke] for inducing [his son] by example[] to
commit [the latter’s] crime” absent any evidence of inducement; and (3) the district
court increased Suschanke’s sentence so he would receive sex offender treatment.
Suschanke concludes his sentence is “arbitrary and whimsical.”
“In reviewing a sentence, we engage in a two-part inquiry.” United States v.
Buesing, 615 F.3d 971, 974 (8th Cir. 2010). “We first ‘ensure that the district court
committed no significant procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing to
consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence.’” Id. at 974-75
(quoting Gall v. United States, 552 U.S. 38, 51 (2007)). “If the district court did not
err on any such procedural ground, we ‘then consider the substantive reasonableness
of the sentence imposed under an abuse-of-discretion standard.’” Id. at 975. It is “the
unusual case when we reverse a district court sentence—whether within, above, or
below the applicable Guidelines range—as substantively unreasonable.” United
States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc) (quoting United
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States v. Gardellini, 545 F.3d 1089, 1090 (D.C. Cir. 2008) (internal quotation marks
omitted)).
We hold Suschanke’s sentence is not procedurally or substantively
unreasonable. The district court recited § 3553(a)’s parsimony principle, stated it had
considered all of the § 3553(a) factors, and explained with sufficient specificity the
reasons for imposing its chosen sentence upon Suschanke. See Feemster, 572 F.3d
at 461 (stating district courts need not “provide a mechanical recitation of the
§ 3553(a) factors when determining a sentence” (quoting United States v. Walking
Eagle, 553 F.3d 654, 659 (8th Cir. 2009) (internal quotation marks omitted)). The
record does not reveal the district court relied on unsupported information, and we
cannot say its observation that Suschanke was a “poor example” for his son was
clearly erroneous, if erroneous at all. See generally United States v. Barry, 938 F.2d
1327, 1337-38 (D.C. Cir. 1991). The district court recognized Suschanke was the one
who “sought [the child pornography] out,” and Suschanke brought the offensive
images into the home computer.
Even if the abrogation of United States v. Hawk Wing, 433 F.3d 622, 629-30
(8th Cir. 2006) (affirming a district court’s decision to consider rehabilitation when
deciding whether to impose a lengthier sentence) is forthcoming, “nothing . . .2
prohibits sentencing courts from considering rehabilitative needs for other reasons,
such as in selecting a shorter term of imprisonment.” In re Sealed Case, 573 F.3d
844, 851 (D.C. Cir. 2009). See generally Pepper v. United States, ___ U.S. ___, ___,
131 S. Ct. 1229, 1241 (2011) (holding district courts may consider rehabilitation
when deciding whether to impose a more lenient sentence at a defendant’s
resentencing). The district court merely stated, “I also believe that [Suschanke] can
See Brief in Opposition to Petition for Writ of Certiorari, Tapia v. United2
States, ___ U.S. ___, 131 S. Ct. 817 (Dec. 10, 2010) (No. 10-5400), 2010 WL
5102987, at *7-*8 (disavowing Hawk Wing).
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be afforded sex offender treatment in the custody of [the] Bureau of Prisons, and that
can be accomplished by a sentence of imprisonment of less than 78 months.” The
district court was not required to extend more leniency to Suschanke than it did. See
United States v. McKanry, 628 F.3d 1010, 1022 (8th Cir. 2011) (“[W]here a district
court has sentenced a defendant below the advisory [G]uidelines range, it is nearly
inconceivable that the court abused its discretion in not varying downward still
further.”) (quoting United States v. Moore, 581 F.3d 681, 684 (8th Cir. 2009)).
Suschanke’s 60-month sentence is neither “arbitrary” nor “whimsical.” We
affirm.
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