United States v. McDonaldes, No. 19-3222 (7th Cir. 2020)
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McDonald pleaded guilty to transporting child pornography, 18 U.S.C. 2252A(a)(1). He admitted to using his computer to send two emails with video attachments containing pornography depicting children as young as five and portraying “sadistic and masochistic conduct” and admitted to using a filesharing website to download child pornography. His hard drive contained approximately 5,000 images and 890 videos of child pornography.
His guidelines range was 151-188 months’ imprisonment. The PSR recommended a reduction of three levels for acceptance of responsibility, even though McDonald insisted that he received the emails unintentionally and “wasn’t sure” if the content was illegal. McDonald sought a statutory minimum sentence of five years, arguing “[a]ny lengthy sentence may be a death sentence” because of his age (62-63), his type I diabetes, and two blocked arteries near his heart.
The Seventh Circuit affirmed a 156-month sentence as being “in most part and significant part” based on the 18 U.S.C. 3553(a) factors, including the guidelines range. The court acknowledged McDonald’s medical reports and considered his age and medical conditions and how McDonald had served his family and community by caring for his parents and by rescuing animals. The court concluded that aggravating factors countervailed because McDonald possessed and distributed large amounts of child pornography, there were “significant” reasons to believe that McDonald would re-offend, McDonald had photographed neighborhood children, and he had wavered in accepting responsibility.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 19-3222 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GLENN MCDONALD, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:16-CR-00078(1)— John Robert Blakey, Judge. ____________________ ARGUED NOVEMBER 17, 2020 — DECIDED NOVEMBER 24, 2020 ____________________ Before EASTERBROOK, HAMILTON, and ST. EVE, Circuit Judges. ST. EVE, Circuit Judge. Glenn McDonald appeals his withinguidelines sentence of 156 months in prison, arguing that it is substantively unreasonable because his age and poor health make it likely that he will die there. But McDonald failed to present evidence of a shortened life expectancy to the district court, and the court otherwise considered McDonald’s age and medical conditions, along with the other factors 2 No. 19-3222 enumerated in 18 U.S.C. § 3553(a), when it selected his sentence. We a rm. I. Background McDonald pleaded guilty to transporting child pornography, in violation of 18 U.S.C. § 2252A(a)(1). In his plea agreement, McDonald admitted to using his computer to send two emails with video attachments containing pornography depicting children as young as ve and portraying “sadistic and masochistic conduct.” McDonald also admitted to using a lesharing website to download child pornography. When searched, his hard drive contained approximately 5,000 images and 890 videos of child pornography. A probation o cer calculated a guidelines range of 151 to 188 months in prison for McDonald based on a total o ense level of 34 and a criminal history category of I. The o cer noted that, beyond the videos described in the plea agreement, McDonald’s hard drive contained over 100 images of girls under ten in bathing suits outside his neighbor’s home, and that McDonald had sent an email stating his interest in “naked kids preteen. 0 to 12yo.” The o cer recommended a reduction of three levels for acceptance of responsibility, even though McDonald insisted that he received emails with child pornography unintentionally and “wasn’t sure” if that content was illegal because he had “assumed” the government “ran” the internet. McDonald led two sentencing memoranda, both arguing for a below-guidelines sentence of ve years (the statutory minimum) because of his age and health. McDonald contended that “[a]ny lengthy sentence may be a death sentence” No. 19-3222 3 because of his age (62 at the time of the rst memo and 63 at the time of the second), his type I diabetes, and his two blocked arteries near his heart. Although he furnished no actuarial evidence of his life expectancy, he submitted medical records from 2010 and 2016 con rming that he had diabetes and a “high risk” coronary-artery calcium score. At the sentencing hearing on October 18, 2019, the district court accepted the facts and guidelines calculation from the probation o cer without objection. McDonald argued that the guidelines recommendation was a “poor t,” and he feared the “real possibility” of dying in prison if sentenced within the recommended range. McDonald asserted that, given the “90 percent blockage of his arteries” and his diabetes, even a below-guidelines sentence would be “challenging” for him. The district court sentenced McDonald to 156 months in prison – within the guideline range of 151-188 months imprisonment. The court explained that “in most part and signi cant part” it based McDonald’s sentence on the factors enumerated in 18 U.S.C. § 3553(a), including the guidelines range of 151 to 188 months. As mitigating factors, it acknowledged McDonald’s medical reports, and it considered his age and medical conditions as “individual di culties” that McDonald would face in custody. The court also noted how McDonald had served his family and community by caring for his parents before their deaths and by rescuing animals. But the court explained that aggravating factors countervailed. Beginning with McDonald’s role in the child-pornography market, the court stressed that, although he did not produce it, McDonald “owe[d his] fair share of culpability” because he possessed and distributed large amounts of child 4 No. 19-3222 pornography. The court also found “signi cant” reasons to believe that McDonald would reo end: He had “actively attempt[ed] to participate in an internet community that shared and distributed” child pornography by emailing members and “pu ng” up his sexual desire for children as young as infants. Finally, the court considered that McDonald had photographed neighborhood children and had wavered in accepting responsibility for his o ense. II. Analysis On appeal, McDonald challenges only the substantive reasonableness of his within-guidelines sentence. McDonald argues that the district court e ectively sentenced him to life in prison without adequate reason or explanation. O ering data for the rst time that on average diabetes reduces a person’s life expectancy by 12 years, and that a 64-year-old man’s life expectancy is normally 18 years, he maintains that a sentence above the ve-year statutory minimum is a de facto life sentence. (McDonald misstates his age at sentencing; he was in fact 63.) He concludes that because the court failed to mention McDonald’s exact age and health issues when imposing his “life” sentence, the court did not adequately justify it. McDonald has not shown that his within-guidelines sentence is unreasonable. To begin, we presume that a withinguidelines sentence is reasonable. Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Mykytiuk, 415 F.3d 606, 607 (7th Cir. 2005). McDonald’s argument that his life expectancy is less than his 13-year prison term does not rebut the presumption that the district court sentenced him reasonably, because he never presented this argument (let alone data for No. 19-3222 5 it) to the district court. “[L]itigants generally are not allowed to bypass the district court and present evidence for the rst time to the court of appeals.” United States v. Miller, 832 F.3d 703, 704 (7th Cir. 2016) (citing Fed. R. App. P. 10(e)). True, McDonald submitted three pages of medical records. But they stated only that he had diabetes and blocked arteries; they did not opine on his life expectancy. The district court thus was not required to nd that, if McDonald were to serve his full sentence, he would not be alive when released in his late-70s. A release date at that age “is not the kind of de facto life sentence that has concerned us in the past.” United States v. Dingle, 862 F.3d 607, 613 (7th Cir. 2017) (sentence substantively reasonable where defendant would be released in his mid80s). Without actuarial evidence in the district court of a de facto life sentence (or an excuse from McDonald for not presenting such data there), the district court cannot be faulted for sentencing him to a 13-year prison term, or not elaborating on the actuarial impact of his age and health. Further, the actuarial data that McDonald now presents does not compel the conclusion he advances. The data shows that a man of his age is expected to live 18 more years, which is more than his sentence of 13 years. He “attempts to rely on the average reduction in life expectancy caused by diabetes, without regard to the age at which he acquired the disease or the reduction in life expectancy that accrues to a person of his age.” United States v. Wurzinger, 467 F.3d 649, 651 n.2 (7th Cir. 2006). But an average reduction does not reliably estimate McDonald’s life expectancy. “[O]lder people are closer to death and have shorter life expectancies, [so] life-threatening conditions may cause a smaller drop in life expectancy for them, simply because they have less life to lose.” Id. 6 No. 19-3222 Finally, even if we assume that McDonald’s sentence is effectively a life sentence, the district court adequately explained his sentence in a manner consistent with the § 3553(a) factors, which is all that was required. See United States v. Cunningham, 883 F.3d 690, 701–02 (7th Cir. 2018); United States v. Volpendesto, 746 F.3d 273, 299 (7th Cir. 2014). “[T]he probability that a convict will not live out his sentence should certainly give pause to a sentencing court.” Wurzinger, 467 F.3d at 652. But we have upheld a de facto life sentence where the sentencing court determined that the defendant “showed a risk of recidivism and lack of respect for the law,” Volpendesto, 746 F.3d at 299, and the court “appreciated the severity of the sentence.” United States v. Cheek, 740 F.3d 440, 454 (7th Cir. 2014) (quoting United States v. Patrick, 707 F.3d 815, 819–20 (7th Cir.2013)); see also United States v. Kincannon, 567 F.3d 893, 901 (7th Cir. 2009). The district court did so here. In choosing his sentence, the court considered McDonald’s age and health issues as “di culties” he would face in custody. But the court found the seriousness of McDonald’s conduct, his wavering acceptance of responsibility, and the substantial risk of his recidivism more “signi cant.” See United States v. Gross, 437 F.3d 691, 693 (7th Cir. 2006) (distributing child pornography “is quite serious,” because it “creates a market for its production, which inevitably leads to the abuse of children.”); Wurzinger, 467 F.3d at 653 (even if “older o enders are generally less likely to commit crime,” “what matters is whether the court reasonably concluded that [the defendant] in particular is a risk for further crimes”). The court’s explanation of its reasons for McDonald’s sentence was therefore adequate. See Cunningham, 883 F.3d at 701–02. AFFIRMED
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