United States v. Cobler, No. 13-4170 (4th Cir. 2014)
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Defendant was convicted of production, possession, and transportation of child pornography, in connection with his sexual molestation of a four-year-old boy. On appeal, defendant challenged the imposition of a 120-year sentence, arguing that the prison sentence was disproportionate to his crimes and constituted cruel and unusual punishment under the Eighth Amendment. The court rejected defendant's constitutional challenges and concluded that the district court did not abuse its discretion in imposing a sentence designed to protect the public and to address the seriousness of defendant's crimes. Accordingly, the court affirmed the judgment of the district court.
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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4170 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES ROBERT COBLER, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Michael F. Urbanski, District Judge. (5:12-cr-00026-MFU-JGW-1) Argued: January 29, 2014 Decided: April 11, 2014 Before DUNCAN, KEENAN, and WYNN, Circuit Judges. Affirmed by published opinion. Judge Keenan wrote the opinion, in which Judge Wynn joined. Judge Duncan wrote a separate opinion concurring in the judgment. ARGUED: Christine Madeleine Lee, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellant. Jean Barrett Hudson, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee. ON BRIEF: Larry W. Shelton, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellant. Timothy J. Heaphy, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee. BARBARA MILANO KEENAN, Circuit Judge: In this appeal, we consider the constitutionality and the reasonableness of a 120-year sentence imposed on a defendant convicted of production, possession, and transportation of child pornography, in connection four-year-old boy. with his sexual molestation of a The defendant argues that his lengthy prison sentence is disproportionate to his crimes, constituting cruel and unusual punishment under the Eighth Amendment, and that the sentence is greater sentencing goals. than necessary to achieve legitimate Upon our review, we reject the defendant s constitutional challenge and conclude that the district court did not abuse its discretion in imposing a sentence designed to protect the public defendant s crimes. and to address the seriousness of the Accordingly, we affirm. I. In April 2012, undercover police investigators identified a computer belonging to James Robert Cobler (Cobler) as a source of child pornography on the Internet. and searching investigators Cobler s found home numerous in images After obtaining a warrant Winchester, and video Virginia, recordings depicting the sexual abuse of children. During an interview with police, Cobler admitted that he had downloaded, possessed, and shared child pornography over the 2 Internet using a peer-to-peer file-sharing network. Cobler also confessed that he had sexually molested a four-year-old boy on four separate babysitter, and occasions had photographed encounters with the child. health who is while acting and as the filmed child s his sexual Cobler, a 28-year-old man in poor afflicted by a serious communicable disease, admitted that at the time he molested the child, he was aware of the possibility that his disease could be transmitted to the child by sexual contact. Cobler pleaded guilty to three counts of production of child pornography, see 18 U.S.C. § 2251(a) and (e), one count of transportation of child pornography in interstate commerce, see 18 U.S.C. § 2252(a)(1) and (b)(1), and one count of possession of child pornography, see 18 U.S.C. § 2252(a)(4)(B) and (b)(2). The United States Probation Office prepared a Presentence Report (PSR), in which the probation officer concluded that although Cobler lacked any prior convictions, the severity of his offenses warranted an initial advisory guidelines term of life imprisonment. However, because none of Cobler s criminal charges provided for a sentence of life imprisonment, Cobler s guidelines sentence ultimately was calculated to be 1,440 months, or 120 years, which represented the sum of the statutory maximum sentences available for 3 each count of conviction. Cobler did not object to the district court s adoption of the PSR calculations. At the sentencing hearing, Cobler requested a significant downward variance from the applicable guidelines, based in part on his grave medical condition and short life expectancy, as well as his lack of criminal history. that a guidelines sentence was The government argued justified, and that it would deter others from committing similar crimes. After considering the sentencing factors set forth in 18 U.S.C. § 3553(a), the district court decided that there was no reason to vary from the guidelines in this case and imposed a sentence of 120 years imprisonment. Cobler filed a timely appeal, challenging the constitutionality and the reasonableness of his sentence. II. Cobler Eighth argues that Amendment s punishment 120-year prohibition and (citation omitted). 280 F.3d disproportionate unusual See Meyers, is cruel the severity of his crimes, a question that we review de novo. v. sentence against violates the States the sentence to United because his 407, 416 (4th Cir. 2002) Cobler asks that we revisit some of our recent precedent, which he argues improperly suggests that this Court need not review his constitutional 4 challenge because proportionality review imprisonment without appropriate, or of Hong, 242 F.3d is imprisonment United sentence is required. 528, See (4th Cir. available for any v. the 58 than life available, not United 2001) States F.3d of 86, v. Ming ( [P]roportionality sentence possibility Lockhart, less not 532 without States parole not not review any less than life see also parole. ); 89 (4th Cir. 1995) (stating that proportionality review is not appropriate for any such sentence); United States v. Polk, 905 F.2d 54, 55 (4th Cir. 1990) (observing that the Supreme Court does not require proportionality review Whitehead, F.2d 849 of 849, such 860 sentences); (4th Cir. United 1988) States (same); v. United States v. Guglielmi, 819 F.2d 451, 457 (4th Cir. 1987) (same). Before addressing framework for these arguments, proportionality we examine challenges the analytical established by the Supreme Court. The Eighth Amendment states that [e]xcessive bail shall not be unusual required, nor punishments Punishment is deemed excessive fines inflicted. cruel and imposed, U.S. unusual Const. not nor cruel amend. only when and VIII. it is inherently barbaric, but also when it is disproportionate to the crime for which it is imposed. Graham v. Florida, 560 U.S. 48, 59 (2010); see Weems v. United States, 217 U.S. 349, 367 5 (1910) (referring to the precept of justice that punishment for crime should be graduated and proportioned to [the] offense ). A defendant may challenge the proportionality of a sentence under the Eighth Amendment in two different ways. Under an as- applied challenge, a defendant contests the length of a certain term-of-years sentence as being disproportionate given all the circumstances in a particular case. Graham, 560 U.S. at 59. In a categorical challenge, a defendant asserts that an entire class of sentences is disproportionate based on the nature of the offense or the characteristics of the offender. 60. Id. at In this appeal, Cobler argues that his prison sentence is constitutionally infirm under both these approaches. The Supreme Court has emphasized the limited scope of both types of proportionality challenges. applied challenge, proportionality the Court principle In the context of an as- has the of explained Eighth that the Amendment narrow does not require strict proportionality between crime and sentence, but forbids only disproportionate extreme to the sentences crime. that Graham, 560 are grossly U.S. at 59-60 (quoting Harmelin v. Michigan, 501 U.S. 957, 997, 1000-01 (1991) (Kennedy, J., concurring)) (internal quotation marks omitted). Before an appellate court concludes that a sentence is grossly disproportionate first must based determine on that an a as-applied threshold 6 challenge, the comparison of court the gravity of the offense and the severity of the sentence leads to an inference of gross disproportionality. Id. (quoting Harmelin, 501 U.S. at 1005 (Kennedy, J., concurring)) (brackets omitted). In the rare case that a reviewing court concludes that such an inference may be drawn, the court is required to compare the defendant s sentence: (1) to sentences for other offenses in the same jurisdiction; and (2) to similar offenses in other jurisdictions. Id. sentences for If this extended analysis validates the threshold determination that the sentence is grossly disproportionate, the sentence is deemed cruel and unusual punishment under the Eighth Amendment. Id. The Supreme Court has identified a term-of-years sentence as being grossly disproportionate on only one occasion. In Solem v. Helm, 463 U.S. 277 (1983), a recidivist defendant had been sentenced to life imprisonment without parole for passing a bad check in the amount of $100. In reviewing the defendant s Eighth Amendment challenge to his sentence, the Court identified the following objective criteria to be used in conducting a full proportionality analysis: (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals sentences imposed jurisdictions. in for the same jurisdiction; commission Id. at 292. of the same and (3) the crime in other Because the bad check crime was one of the most passive felonies a person could commit and the 7 punishment was the most severe non-capital sentence available, the Court inferred that the defendant s sentence was grossly disproportionate. conducted an Id. extended at 296-97. Accordingly, proportionality review, the engaging Court in a comparative analysis of other penalties and other jurisdictions, and concluded that unconstitutional. Since Supreme threshold the Court the defendant s sentence was Id. at 296-300. decision has in been inference of Solem, no successful gross in defendant before establishing disproportionality. the even See, a e.g., Ewing v. California, 538 U.S. 11 (2003); Harmelin, 501 U.S. 957; Hutto v. Davis, 454 U.S. 370 (1982) (per curiam); Rummel v. Estelle, 445 U.S. 263 (1980). Notably, in Harmelin, the Court upheld a life sentence without parole for a first-time felon convicted of possession of 672 grams of cocaine. at 961, 996. See 501 U.S. Justice Kennedy, whose concurrence in Harmelin later was regarded as the controlling opinion in that case, Graham, 560 U.S. at 59-60, contrasted the passive check fraud in Solem with the pernicious drug offenses that threaten[] to cause grave harm to society by crime, and social displacement. contributing to violence, 501 U.S. at 1002-03 (Kennedy, J., concurring). In another as-applied proportionality challenge, the Supreme Court in Ewing reviewed a prison sentence of 25 years to 8 life under California s three strikes statute, 1 imposed for theft of $1200 in merchandise. 538 U.S. at 19-20. Employing its analysis from Solem, the Court observed that the theft crime was certainly not one of the most passive felonies a person could commit and could justify a prison sentence of between 25 years and life imprisonment. Ewing, 538 U.S. at 28 (plurality opinion) (quoting Solem, 463 U.S. at 296); see also Lockyer v. Andrade, 538 U.S. 63 (2003) (affirming, upon habeas review, a sentence under California s three strikes law of two consecutive terms of 25 years to life in prison for petty theft of videotapes worth about $150). In comparison to the as-applied challenges described above, categorical challenges to whole classes of prison sentences also have had very limited success in the Supreme Court. With respect to a categorical challenge, the reviewing court first 1 California s three strikes law was designed to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses. Cal. Penal Code § 667(b). Under the version of the statute in effect at the time of Ewing, a defendant who had been convicted of two or more prior serious or violent felonies, and who committed any new felony, must receive an indeterminate term of life imprisonment. 538 U.S. at 16 (citations and internal quotation marks omitted). In 2012, the three strikes law was amended by Proposition 36, also known as the Three Strikes Reform Act, which among other things required that a defendant s new offense must also be a serious or violent felony before a defendant would qualify for a life sentence as a third strike offender. See Cal. Penal Code § 1170.126 (allowing resentencing of defendants pursuant to the Three Strikes Reform Act of 2012). 9 determines whether a national consensus against the sentencing practice at issue is evident from objective indicia of society s standards, as expressed in legislative enactments and state practice. Graham, 560 U.S. at 61. Next, the court exercises its independent judgment whether the punishment in question violates the Constitution. challenge [class requires of] consideration offenders at issue in Id. of Thus, a categorical the light culpability of the crimes their of and characteristics, along with the severity of the punishment in question. Id. at 67. Before classes 2010, of the death disproportionate. unconstitutional offenders category of Supreme sentences had as deemed being only certain categorically The Court held that capital punishment was under certain underlying the Court most circumstances, convictions serious fell crimes, either outside see, the e.g., because narrow Kennedy v. Louisiana, 554 U.S. 407, 420 (2008) (rape), Enmund v. Florida, 458 U.S. 782 (1982) (certain types of felony murder), or because some populations responsibility for of offenders their crimes, had diminished personal such as who persons are intellectually disabled, see Atkins v. Virginia, 536 U.S. 304 (2002), and juveniles, see Roper (2005). 10 v. Simmons, 543 U.S. 551 In recent years, the Court has extended its use of the categorical prison analysis sentences to a very involving narrow juvenile group of non-capital offenders. Employing a categorical analysis, the Court has barred certain sentences of life imprisonment without parole for juveniles. U.S. 48 (prohibiting life imprisonment See Graham, 560 without parole for juveniles convicted of non-homicide crimes); Miller v. Alabama, 132 S. Ct. 2455 (2012) (barring mandatory life imprisonment without parole for juveniles convicted of homicide crimes). Court linked its unprecedented willingness to reverse The non- capital sentences to this narrow, special context of juvenile offenders, for whom likene[d] . . . a to life the sentence death without penalty parole itself, can be particularly given the reality that a juvenile will spend more of his life in prison than an adult. Miller, 132 S. Ct. at 2466. Within this limited framework for proportionality review of as-applied and categorical Cobler s assertion that wholesale restriction challenges, our Circuit against we turn improperly proportionality to consider imposes review for a any prison sentence of less than life imprisonment without parole. Cobler bases his assertion on the statements in some of our decisions cited above, which suggested that proportionality review is not available, not appropriate, or not required for a term-of-years sentence. See supra at 4. 11 Cobler s argument fails, however, because it discounts the full import of our holding in United States v. Rhodes, 779 F.2d 1019 (4th Cir. 1985). It is well-established law in this Circuit that our first case to decide an issue controls later consideration of that same issue, unless it is overruled by this court sitting en banc or by the Supreme Court. McMellon v. United States, 387 F.3d 329, 334 (4th Cir. 2004). And, on the subject of challenges judicial to review available for term-of-years sentences proportionality under the Eighth Amendment, the earliest, controlling case in this Circuit is Rhodes. In Rhodes, asserted two defendants as-applied in a proportionality drug conspiracy challenges to case their respective prison sentences of 50 and 75 years, arguing that the Supreme Court s decision in Solem entitled them to extensive proportionality review of those sentences. Id. at 1026. The Supreme Court held in Solem that the Eighth Amendment principle of proportionality is applicable generally to the review of noncapital felony prison sentences, and that no penalty is per se constitutional. emphasized, required to 463 however, engage U.S. that in a at 288-90. reviewing extended analysis The court to Court rarely determine sentence is not constitutionally disproportionate. 290 n.16 (emphasis added). further will that be a 463 U.S. at Additionally, the Court explained 12 that proportionality challenges to non-capital sentences rarely will be successful, due to the substantial deference reviewing courts owe to Congress and to trial courts. that Id. at 289-90; see also Hutto, 454 U.S. at 374 (noting that for felony crimes, because constitutional there is distinction no between clear one way term to of make years any and a shorter or longer term of years, the length of the sentence actually imposed is purely a matter of legislative prerogative and successful challenges to the proportionality of particular sentences should be exceedingly rare ) (citations and internal quotation marks omitted). In view of this instruction in Solem, we held in Rhodes that extensive proportionality analysis is required only in those cases involving alternatively, parole that in are cases life sentences involving functionally without terms equivalent because of [the defendants ] ages. of to parole, years life or, without sentences 779 F.2d at 1028 (emphasis added). In considering the term-of-years sentences before us in Rhodes, we further explained that additional proportionality analysis generally is not required when a simple matching of the facts of a particular case against the Solem principles will suffice [to establish the constitutionality of a given sentence] without extended discussion. Id. at 1028-29. 13 This observation, discussion of that the proportionality need often for will be an extended obviated by a simple matching of facts to law, essentially presaged Graham s directive that a reviewing court first consider whether there is a threshold . . . inference of gross disproportionality. 560 U.S. at 60 (citation and internal quotation marks omitted). Our decision in Rhodes is also consistent with the Supreme Court s further instruction in Graham that, in the absence of such a threshold inference, extended comparative analysis of a sentence is unnecessary to justify its constitutionality. Id. Thus, in contrast to some of our later decisions, Rhodes did not hold that judicial review of proportionality challenges to termof-years sentences is not available, not appropriate, or not required. Under the first-in-time precedential authority of Rhodes, any later decisions in this Circuit that imprecisely have characterized Rhodes s discussion of proportionality review are not controlling. 2 See McMellon, 387 F.3d at 334. 2 Thus, we take Some of our colleagues already have observed that Ming Hong s statement that proportionality review is available only in limited circumstances is not good law, although they have expressed different opinions regarding the precise way to resolve our conflicting cases. For example, some have suggested that en banc review is necessary to resolve a conflict in our cases. See, e.g., United States v. Hashime, 722 F.3d 572, 574 (4th Cir. 2013) (Gregory, J., concurring in denial of reh g en banc). Another colleague has expressed the view that in Polk (Continued) 14 the opportunity here to reaffirm the vitality of Rhodes and of the cases that accurately have applied its holding. See, e.g., United States v. Wellman, 663 F.3d 224, 231 (4th Cir. 2011) (noting the observation proportionality in analyses only are Rhodes that required in extensive those cases involving life sentences without the possibility of parole, and that lesser sentences that are clearly within the prerogative of Congress and subject to imposition by a district court may be disposed of swiftly ); Sutton v. Maryland, 886 F.2d 708, 712 (4th Cir. 1989) (doubting, based on Rhodes, whether using all of the Solem factors in a proportionality analysis is necessary where [c]learly, the gravity of the [assault] offense and the circumstances of the crime justify a fifteen year sentence ). We further observe that our dictum in cases such as Ming Hong stands in conflict with proportionality jurisprudence. the Supreme Court s modern As the Court stated in Solem, no penalty is per se constitutional, and even a single day in and in other cases since Rhodes, we established that proportionality review of prison sentences less than life imprisonment without parole is not required and therefore is discretionary. United States v. Hashime, 734 F.3d 278, 286-88 (4th Cir. 2013) (King, J., concurring). However, because none of these later cases purported to amplify the holding in Rhodes, and because Rhodes articulated the law of this Circuit and anticipated the Supreme Court s adoption of a clear structure for proportionality review in Graham, we regard Rhodes as the touchstone for our analysis and need not consider the above efforts to reconcile our later cases. 15 prison may be unconstitutional in some circumstances. at 290. 463 U.S. In Graham, the Court clarified that when a defendant challenges the proportionality of a term-of-years sentence, courts must begin by comparing the gravity of the offense and the severity of the sentence. 560 U.S. at 60. These decisions afford constitutional protection to every prison sentence, and compel us to review challenges to such sentences for proportionality under the Eighth Amendment. 3 We therefore turn to consider the merits of Cobler s asapplied proportionality challenge. 3 The first step in our We disagree with our esteemed concurring colleague s view that revisiting our dictum in cases such as Ming Hong is unnecessary because [a] finding that proportionality analysis is available is scarcely outcome determinative given the severity of Cobler s crimes. Post at 25. Indeed, Ming Hong and some of our other cases did not merely concern the applicability of a mode of analysis, but wrongly suggested that any judicial review of proportionality challenges less than life imprisonment without the possibility of parole would be foreclosed. See Ming Hong, 242 F.3d at 532. Such a sweeping prohibition conflicts with our decision in Rhodes and seems plainly incorrect in light of the Supreme Court s observation in Solem that no penalty is per se constitutional, as one of our sister circuits already has observed. United States v. Kidder, 869 F.2d 1328, 1333 n.5 (9th Cir. 1989) (quoting Solem, 463 U.S. at 290). Our recognition of this conflict is necessary because the Supreme Court s statement in Graham that proportionality review applies to a sentence for a term of years, 560 U.S. at 60, does not independently supersede our dictum in Ming Hong limiting such review to life sentences, given that the Supreme Court construes the phrase term of years to include a life sentence. See, e.g., Graham, 560 U.S. at 70 (noting that Solem, which involved a sentence of life imprisonment without parole, was the only previous case striking down a sentence for a term of years as grossly disproportionate ). 16 analysis requires us to decide whether a threshold comparison of the gravity sentence of Cobler s leads us to offenses infer that disproportionate to his crimes. Given criminal the shocking convictions, substantiate the disproportionality. Cobler s equivalent 120-year to a and we Even term sentence the his severity sentence is of his grossly Id. vile hold required and conduct that Cobler threshold assuming, underlying has inference without of imprisonment of life these failed of gross deciding, is imprisonment to that functionally without the possibility of parole, 4 we conclude that Cobler s multiple child pornography crimes are at least as grave as the drug offense in Harmelin, which the Supreme Court deemed sufficiently egregious to justify a similar sentence. See 501 U.S. at 996. 4 The Supreme Court has not yet decided the question whether a lengthy term-of-years sentence is, for constitutional purposes, the same as a sentence of life imprisonment without the possibility of parole. See, e.g., Lockyer, 538 U.S. at 74 n.1 (noting the argument that it is unrealistic to think that a sentence of 50 years to life for [a 37-year-old defendant] is not equivalent to life in prison without parole, but stating only that [t]wo different sentences do not become materially indistinguishable based solely upon the age of the persons sentenced ); Bunch v. Smith, 685 F.3d 546, 552 (6th Cir. 2012) (recognizing the controversy amongst state and federal courts regarding whether Graham s categorical rule only applies to juvenile nonhomicide offenders expressly sentenced to life without parole or also extends to juvenile offenders sentenced to consecutive, fixed terms resulting in an aggregate sentence that exceeds the defendant s life expectancy ). 17 As a general matter, the prohibition of child pornography derives from a legislative judgment that such materials are harmful to the physiological, emotional, and mental health of children, and that preventing the sexual exploitation of this uniquely vulnerable group constitutes a government objective of surpassing importance. 58 (1982). conduct of New York v. Ferber, 458 U.S. 747, 757- We further this observe nature that is exceeded circumstances of this case. far the usual by severity the of particular Not only did Cobler possess large quantities of child pornography that he downloaded and shared on the Internet, fueling the public consumption of materials harmful to children, but he also created depictions of his own sexual exploitation, molestation, and abuse of a four-year-old child. To make matters worse, Cobler was aware that his sexual contact with the child could have caused the child to contract Cobler s serious communicable disease. Far from being one of the most passive felonies a person could commit, Solem, 463 U.S. at 296, Cobler s heinous acts exploited, injured, and inflicted great harm on a most vulnerable victim. Accordingly, we conclude that the relationship between the gravity of Cobler s offenses and the severity of his punishment fails to create the threshold inference of gross disproportionality that is required to maintain a successful asapplied challenge to a criminal 18 sentence under the Eighth Amendment. We also observe that other courts have reached similar results in child pornography cases in which sentences of life imprisonment were imposed. See, e.g., United States v. McGarity, 669 F.3d 1218, 1255-57 (11th Cir. 2012) (holding that life sentences pornography ring for seven were not defendants grossly involved in disproportionate a child under the Eighth Amendment); United States v. Paton, 535 F.3d 829, 837-38 (8th Cir. 2008) (upholding constitutionality of a defendant s life sentence for five counts of producing child pornography). We conclude lacks merit. that Cobler s categorical challenge likewise The present case involves neither a sentence of death nor a sentence of life imprisonment without parole for a juvenile offender, the only two contexts in which the Supreme Court categorically disproportionate. has deemed sentences unconstitutionally Cf. Graham, 560 U.S. at 60-62. To the extent that this 28-year-old defendant argues that his developmental immaturity categorically requires that he be treated more leniently as a juvenile, we reject that argument at the outset given the complete lack of evidence in the record regarding any national consensus about how immature adults should be sentenced for child pornography crimes. See United States v. Reingold, 731 F.3d 204, 215 (2d Cir. 2013) (stating that even if the defendant was a developmentally immature young adult at the time of the crime, that assessment hardly supports categorical 19 rule analysis in the absence of any consensus regarding the sentencing of immature adults). Moreover, we decline to substitute a subjective judgment about the relative immaturity of a particular defendant for the objective age of minority that the Supreme Court has used as the benchmark for its categorical analysis of young (stating that offenders. even though See [t]he Roper, 543 qualities U.S. that at 574 distinguish juveniles from adults do not disappear when an individual turns 18, a line for death eligibility must be drawn at the age where society draws the line for many purposes between childhood and adulthood ); see also Reingold, 731 F.3d at 215 (observing that criterion, ill rules ). immaturity, suited to unlike the age, is pronouncement a of subjective categorical Because we find no merit in Cobler s as-applied and categorical proportionality challenges, we conclude that his sentence of 120 years imprisonment does not constitute cruel and unusual punishment under the Eighth Amendment. III. Cobler also challenges the reasonableness of his sentence, which we McManus, review 734 for F.3d abuse 315, 317 of discretion. (4th Cir. United States, 552 U.S. 38, 51 (2007)). 2013) United States (citing Gall v. v. We first assess whether the district court committed any significant procedural error, 20 such as failing to calculate (or improperly calculating) the [g]uidelines range, treating the [g]uidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, adequately explain the chosen sentence. or failing to Gall, 552 U.S. at 51. Next, we consider the substantive reasonableness of the sentence based on the totality of the circumstances. Id. We do not detect any significant procedural error in this case. The district court properly determined the guidelines range, considered and discussed the Section 3553(a) factors, and articulated reasons for the sentence imposed. nevertheless, that statement reasons Cobler of recorded the his court to erred the rape by allegedly of his Cobler maintains, referring erroneous in its fact that four-year-old victim. However, based on our review of Cobler s admissions to police investigators, we reject Cobler s argument and agree with the government that the district court did not err in characterizing Cobler s sexual contact with the child as rape. Having determined that the sentencing court did not commit significant procedural error, we next evaluate whether Cobler s sentence is substantively reasonable. In considering the substantive reasonableness of a sentence, we review whether the district court abused its discretion in determining that the 21 factors contained in Section 3553(a) supported the sentence. See id. at 56. A sentence that falls within a properly guidelines range is presumptively reasonable. Allen, 491 F.3d 178, 193 (4th Cir. 2007). presumptive reasonableness of his calculated United States v. Cobler challenges the within-guidelines sentence, arguing that the sentence was greater than necessary to address the sentencing factors set forth in Section 3553(a). In particular, Cobler contends that the district court abused its discretion by relying upon the factor of deterrence in setting the sentence, especially given Cobler s grave medical condition and diminished life expectancy, and by ultimately fashioning a sentence unique in its severity for the type of sex crimes at issue in this case. See 18 U.S.C. § 3553(a)(2) (referring to the need to afford adequate deterrence to criminal conduct and to protect the public from further crimes of the defendant ); 18 U.S.C. § 3553(a)(6) (noting the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct ). After arguments reviewing fail to the defeat record, the we conclude presumption that that guidelines sentence is substantively reasonable. his Cobler s within- The district court explicitly considered the need for Cobler s sentence to deter others from engaging in what the court considered the 22 most serious imposing a and term egregious of conduct. imprisonment Cognizant that effectively that it would was be a life sentence, the court reasoned that it could not imagine a situation where [the court] can allow the defendant back into the public given that the case involved not only child pornography, but actual sexual abuse of a four-year-old victim that was aggravated by the defendant s knowledge that the victim could have become infected with a serious communicable disease. We cannot conclude that the district discretion in reaching this decision. court abused its Furthermore, we observe that other courts have upheld similar sentences. See, e.g., United States v. Demeyer, 665 F.3d 1374, 1375 (8th Cir. 2012) (affirming the reasonableness of a 120-year, within-guidelines sentence composed of consecutive 30-year prison terms for sexual exploitation of a minor, and noting that the district court did not abuse its discretion to impose concurrent or consecutive sentences ensure for that the multiple [the counts defendant] of would conviction in fact in order serve a to life sentence ); United States v. Noel, 581 F.3d 490, 500-01 (7th Cir. 2009) (affirming an 80-year, below-guidelines prison sentence for production and possession of child pornography as reasonable); United States v. Sarras, 575 F.3d 1191, 1219-21 (11th Cir. 2009) (affirming a within-guidelines sentence of 100 years imprisonment as substantively 23 reasonable given that [c]hild sex crimes are among the most egregious and despicable of societal and criminal offenses ); United States v. Betcher, 534 F.3d 820, reasonableness of 827-28 a (8th 750-year Cir. prison 2008) sentence (upholding for the production, receipt, and possession of child pornography); United States v. Johnson, 451 F.3d 1239, 1244 (11th Cir. 2006) (upholding the reasonableness of a 140-year, within-guidelines prison sentence for production and distribution of child pornography). Accordingly, we conclude that the district court imposed a sentence that reflects the nature and the circumstances of the offense, as well as the other considerations of Section 3553(a). We therefore hold that the sentence is substantively reasonable. IV. For these reasons, we affirm the district court s judgment. AFFIRMED 24 DUNCAN, Circuit Judge, concurring in the judgment: With great respect for the majority s thoughtful opinion, I am of the view that this appeal can (and therefore should) be decided more simply and without finding conflict between two of our prior opinions. an irreconcilable I therefore concur in the judgment. First, as the majority correctly acknowledges, its analysis is ultimately unnecessary. A finding that proportionality analysis is available is scarcely outcome determinative here, because justified Cobler s parole. even a conduct life was sentence sufficiently without grave the to possibility have of See supra p. 17. Further, I remain unpersuaded that United States v. Rhodes, 779 F.2d 1019 (4th Cir. 1985), is so inconsistent with United States v. Ming Hong, 242 F.3d 528 (4th Cir. 2001), as to meet the high standard of irreconcilable conflict required by McMellon v. United States, 387 F.3d 329, 334 (4th Cir. 2004). Rhodes merely held that Solem v. Helm, 463 U.S. 277 (1983), requires an extensive proportionality analysis only in those cases involving life sentences without parole. 1028. Strictly speaking, our holding in Ming 779 F.2d at Hong that proportionality review is not available for a term-of-years sentence, 242 F.3d at 532, is not inconsistent with our holding 25 in Rhodes that extensive proportionality analysis is not required in such a case. The majority points out that the panel in Rhodes went on to apply a limited form of proportionality review to the sentences at issue. sentences But it did so having assumed, arguendo, that the were equivalent possibility of parole. While prior I cannot precedent, inconsistent with, life sentences without the See Rhodes, 779 F.2d at 1028. agree I to that Ming nevertheless and therefore Hong find conflicts with our it to be clearly superseded by, the Supreme Court s holding in Graham v. Florida, 560 U.S. 48, 59-60 (2010) ( [In] determining whether a sentence for a term of years is grossly disproportionate . . . . [a] court must begin by comparing the gravity of the offense and the severity of the sentence. ) I therefore respectfully concur in the judgment. 26
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