United States 8th Circuit Court of Appeals Reports

U.S. v. GARNETTE, 06-1053 (8th Cir. 1-10-2007) UNITED
Appellant. No. 06-1053. United States Court of Appeals,
Eighth Circuit. Submitted: September 26, 2006. Filed:
January 10, 2007.

Appeal from the United States District Court for the
Southern District of Iowa.

Before WOLLMAN, BRIGHT, and BOWMAN, Circuit Judges.

BOWMAN, Circuit Judge.

Terry Allen Garnette pleaded guilty to one count of
producing child pornography in violation of 18 U.S.C.
§ 2251(a) and one count of distributing child
pornography in violation of 18 U.S.C. § 2252(a)(2).
The District Court[fn1] calculated Garnettte’s advisory
sentencing guidelines range as 180 to 210 months’
imprisonment, but sentenced Garnette to 255 months’
imprisonment. Garnette appeals his sentence. We affirm.


We set forth the facts as stated in the Presentence
Investigation Report (PSR). Garnette did not object to the
PSR, and the District Court found the facts as stated
therein. See United States v. Beatty, 9 F.3d 686, 690 (8th
Cir. 1993) (ruling that a district court may accept as true
all factual allegations in a PSR not objected to by the

Garnette was arrested on June 28, 2004, after his live-in
girlfriend, Christina,[fn2] discovered images of child
pornography on Garnette’s home computer and contacted
police. Several of the images were of Christina’s
four-year-old daughter, Dusty, sitting on Garnette’s lap
with her underwear either removed or pulled to the side so
that her genitals were exposed. Dusty had come to live with
Christina and Garnette in April 2004. At that time,
Christina was being treated for ruptured ovarian cysts and
taking medication that caused drowsiness. Garnette used
Christina’s illness to his advantage, taking the
pornographic pictures of Dusty while Christina was napping.
Christina’s suspicions about Garnette’s sexual interests
were raised in May 2004 when Garnette told her that he was
sexually aroused by young girls. Christina also became
aware that Garnette was using the internet to trade images
of adult women who were dressed to appear younger. When
Dusty began acting differently toward Garnette, Christina
surreptitiously searched Garnette’s computer while he was at

In addition to finding the pornographic pictures of Dusty
on the computer, Christina found email messages that
Garnette had written and received discussing trading Dusty
for another child. Christina told police that Garnette had
posted an advertisement on the internet “indicating that he
had a female toddler under the age of five which he wanted
to trade for an older child.” PSR § 19. Responses to
the advertisement came from the United States and seven
other countries. Christina saw at least one response that
“discussed purchasing Dusty rather than trading her.” Id.

After he was arrested and read his rights, Garnette agreed
to cooperate with the police. He informed them that he had
been spending a couple of hours a day on his computer
looking at child pornography and conversing with others
about sex. Garnette admitted downloading hundreds of images
of child pornography and trading images of child
pornography with individuals in the United States, Holland,
England, New Zealand, and the Phillippines. Garnette
acknowledged that he had developed a specific interest in
bondage, sadism, and masochism, and that he had engaged in
such practices with consenting adult women. Garnette stated
that he took the pictures of Dusty to fulfill part of a
fantasy. He confessed to taking four to six pictures of
Dusty when changing her underwear.

A search of Garnette’s computer revealed hundreds of images
of adult and child pornography. A significant amount of the
images contained themes of bondage and sadism. For example,
Garnette had collected a number of images from a known
perpetrator called “Husker Fan.” The images show Husker Fan
abusing his seven-year-old step-daughter and depict
bondage, sadism, anal rape, vaginal rape, anal and vaginal
rape with foreign objects, and the perpetrator standing
over the naked girl with the words “cut me,” “slut,” and
“hurt me” written on her chest and abdomen. The computer
also contained at least thirteen video clips involving
child pornography. These included a series of video clips
involving a four-year-old girl who is a known victim from
Texas commonly referred to as “Baby J.” In the Baby J.
series, Baby J. is shown struggling and crying while an
adult male penetrates her both anally and vaginally and
ejaculates into her mouth. Baby J. is bound and sometimes
blindfolded in the videos.

Prior to sentencing, Garnette voluntarily submitted to a
psychosexual evaluation by Jason Smith, Psy.D. Garnette
told Dr. Smith that he had been viewing pornography on the
internet for the past three or four years, and child
pornography on the internet for the past two years.
Garnette indicated that he was initially only curious about
child pornography, but as time went on, child pornography
became more of his focus and he began masturbating after
viewing the images. Garnette said that he fantasized about
having sex with young girls. Garnette “feels that he is
sexually obsessed.” PSR Attachment: Psychosexual Evaluation
at 5. Garnette believes that “it is everyone’s right to have
sex and that children try to sexually provoke adults.” Id.
He indicated that he “was glad he was caught because he
knew it would have gotten worse.” PSR § 29. Dr.
Smith diagnosed Garnette with pedophilia and found that
Garnette demonstrated a significant set of
research-supported risk factors that place him at medium
risk for re-committing a sexually deviant offense.
According to Dr. Smith, after Garnette is released from
prison there is a 25% likelihood that he will re-offend
within five years and a 37% likelihood that he will
re-offend within ten years. Garnette’s test results further
suggest that “he has attributes and behaviors highly
similar to those [of] known sex offenders and the condition
of sex deviance may be a component of his personality
make-up.” PSR Attachment: Psychosexual Evaluation at 10.

The District Court calculated Garnette’s guidelines
sentencing range as 168 to 210 months, but noted that the
statutory mandatory minimum sentence was 180 months,
effectively making the sentencing range 180 to 210 months.
Garnette filed a sentencing memorandum requesting a
downward departure or variance from the guidelines
sentencing range based on his history of sexual abuse as a
child, his “super” acceptance of responsibility, and his
vulnerability to victimization in prison. Appellant’s Br.
at 4. The government requested the statutory maximum
sentence of 360 months. The District Court denied Garnette’s
request for a downward departure or variance. The court
then considered each of the 18 U.S.C. § 3553(a)
factors and sentenced Garnette to 255 months, “the midway
point between the top of the guideline range and the
statutory maximum.” Sentencing Tr. at 33. The sentence
represents a 21% upward variance from the guidelines range.


Garnette’s first argument is that his sentence is
unreasonable in violation of United States v. Booker, 543
U.S. 220 (2005). Specifically, Garnette contends that the
reasons given by the District Court for imposing a sentence
above the guidelines range were already taken into account
by the guidelines themselves. “When the district court has
correctly determined the guidelines sentencing range, as in
this case, we review the resulting sentence for
reasonableness” under the abuse of discretion standard.
United States v. Gatewood, 438 F.3d 894, 896 (8th Cir.
2006). A sentence within the guidelines range is presumed
reasonable, while a sentence that falls outside the
guidelines range is reasonable only if the district court
offers appropriate justification for the sentence under the
factors identified in 18 U.S.C. § 3553(a). Id. When
a district court varies from the guidelines range based
upon its application of § 3553(a), we consider both
whether the district court’s decision to grant a variance
is reasonable and whether the extent of the variance is
reasonable. United States v. Mashek, 406 F.3d 1012, 1017
(8th Cir. 2005). “A sentence may be unreasonable if the
district court failed to consider a relevant factor that
should have received significant weight, gave significant
weight to an improper or irrelevant factor, or considered
only appropriate factors but committed a clear error of
judgment by imposing a sentence that lies outside the
limited range of choice dictated by the facts.” United
States v. Larrabee, 436 F.3d 890, 892 (8th Cir. 2006).

While the District Court imposed a sentence outside the
presumptively reasonable guidelines sentencing range, the
District Court’s careful application of the §
3553(a) factors and stated justification for the upward
variance convince us that the District Court did not exceed
the permissible bounds of its discretion and, therefore,
the sentence is reasonable.[fn3]

In imposing the sentence, the District Court first
considered the “history and characteristics of the
defendant” under § 3553(a)(1). The court noted that
Garnette had been “a long time actor in this underground.”
Sentencing Tr. at 31. As discussed above, Garnette admitted
viewing child pornography for approximately two years prior
to his arrest. He told police that he has a specific
interest in bondage, sadism, and masochism, and that he was
spending several hours each day viewing child pornography
and discussing sex with others over the internet.
Garnette’s child-pornography trading network was extensive;
he interacted with individuals from the United States,
Holland, England, New Zealand, and the Phillippines. The
District Court did not abuse its discretion in considering
Garnette’s ongoing history of viewing, downloading, and
trading deviant pornography.

Second, the District Court considered §
3553(a)(2)(A) and stated that “only a severe sentence”
could account for the seriousness of Garnette’s offense
conduct, promote respect for the law, and provide just
punishment for the offense. Sentencing Tr. at 31. With
regard to count one (production), the District Court sought
to account for the fact that Dusty was only four years old
at the time she was exploited by Garnette. Garnette argues
that Dusty’s age was already accounted for by the
guidelines and that the District Court was therefore
unreasonable in considering it when imposing an upward
variance. We disagree. While § 2G2.1(b)(1) of the
guidelines provides for a two-level enhancement when the
victim is between the ages of sixteen years and twelve
years, and a four-level enhancement (which Garnette
received) when the victim is under the age of twelve years,
the guidelines provide no further age-based enhancements
for victims significantly younger than twelve years. The
§ 2G2.1(b)(1) adjustment for victims under twelve
years does not account for the particularly vulnerable
state that Dusty was in, given her age at the time of the
abuse. At four years old, Dusty was not able to stop
Garnette from holding her on his lap and exposing her
genitalia, nor was she able to fully articulate Garnette’s
actions towards her. The degree of helplessness faced by
Dusty was far greater than would be faced by an older
child, and it was not erroneous for the District Court to
consider the especially young age of the victim in
considering the nature of Garnette’s offense. Moreover, in
addition to accounting for Dusty’s age, the District Court
found that a longer sentence was necessary to adequately
address and punish Garnette’s attempt to trade or sell
Dusty for an older child. Garnette does not address the
court’s consideration of this particularly egregious
conduct in imposing the § 3553(a) variance.

With regard to count two (distribution), the District Court
remarked that a long sentence was necessary to adequately
address and punish the heinous level of sadism involved in
the images and videos of child pornography found on
Garnette’s computer. While § 2G2.2(b)(3) of the
guidelines provides for a four-level enhancement (which
Garnette received) when the material distributed portrays
sadistic or masochistic conduct, the probation officer who
prepared the PSR stated that “[t]he images and video clips
the defendant possessed involved levels of sadism and
cruelty far beyond what this Probation Officer typically
witnesses in reviewing the discovery materials and applying
the enhancement for § 2G2.2(b)(3).” PSR §
144. Given the extraordinary nature of the material
involved in this case, the District Court did not abuse its
discretion by considering the degree of heinousness as part
of its § 3553(a) analysis.

Third, the District Court determined that the upward
variance was necessary to protect the public. Applying
§ 3553(a)(2)(B), the District Court stated that a
longer sentence would deter the criminal conduct of others,
at least in theory. And applying § 3553(a)(2)(C), the
court stated that the longer Garnette was incarcerated, the
longer the public would be protected from additional crimes
that he might commit. The District Court specifically noted
that Garnette was a diagnosed pedophile with a medium-risk
of re-conviction. The District Court was also concerned by
Garnette’s admission that he would have committed worse
offenses had he not been arrested. The District Court did
not abuse its discretion in making these determinations.

Finally, applying § 3553(a)(2)(D), the District
Court found that the 255-month sentence would permit
Garnette to receive both psycho-sexual and substance-abuse
treatment. The District Court recommended that Garnette
serve his sentence at the Federal Correctional Institute in
Butner, North Carolina, where both types of treatment are

We conclude that the reasons given by the District Court
were appropriate and sufficient to justify the upward
variance. We find the 255-month sentence reasonable in
light of the extraordinary facts of this case.[fn5]


Garnette next argues that the District Court erroneously
concluded that it had no authority to consider the fact
that Garnette endured extraordinary sexual abuse as a
child. Garnette asserts that the District Court should have
considered his personal history of abuse and either granted
a downward departure from the guidelines pursuant to
guidelines § 5K2.13 (diminished capacity of the
defendant) or decreased his sentence pursuant to the
factors in 18 U.S.C. § 3553(a).

We find no merit to Garnette’s argument that the District
Court was unaware of its authority to grant a departure or
a variance on this basis. At the sentencing hearing, the
District Court stated,

I have considered the defendant’s arguments made in the
sentencing memorandum, and while in certain types of cases
extraordinary abuse as a child might be a basis for making
a downward departure, I am not at all satisfied that it
works in a case like this. I think what happened to him as
a child no doubt was a contributing factor, if not the
primary factor, in bringing about his own conduct as an
adult; but that cannot justify a lower sentence in my
opinion than is otherwise appropriate.

Sentencing Tr. at 30. This commentary convinces us that the
District Court recognized that it was not foreclosed from
considering Garnette’s childhood experiences when imposing
his sentence.[fn6] Indeed, the court specifically noted
that “extraordinary abuse of as a child might be a basis
for making a downward departure.” Id. The District Court
also went on to discuss — and factually distinguish
— two cases that recognized a downward departure
might be appropriate when a defendant has suffered
exceptional abuse as a child. Nevertheless, the court
concluded that, in its “opinion” (a term indicating that
the court was exercising discretion), Garnette’s past abuse
did not “justify” a reduced sentence. Id. The court thus
acknowledged that a downward departure or variance was
available in an appropriate case, but found that it was not
justified in this case. When a district court recognizes
that it has the discretionary authority to depart downward,
its “decision not to depart downward is unreviewable.”
United States v. Frokjer, 415 F.3d 865, 875 (8th Cir.


For the foregoing reasons, the judgment of the District
Court is affirmed.

[fn1] The Honorable Harold D. Vietor, United States District
Judge for the Southern District of Iowa.

[fn2] To protect the privacy of Garnette’s victims, we will
use only their first names.

[fn3] The District Court set forth its reasons for the
upward variance at the sentencing hearing and in a sealed
“Statement of Reasons” form attached to the judgment.

[fn4] Garnette also asserts that the District Court varied
from the guidelines sentencing range based on the fact that
Garnette distributed “pedophilia pornography.” Appellant’s
Br. at 11. Our review of the sentencing transcript,
however, reveals that the District Court simply used the
term “pedophilia pornography” in describing the
circumstances of Garnette’s offense, not in explaining its
reasons for the § 3553(a) variance. Sentencing Tr.
at 31.

[fn5] While Garnette argues that his sentence is
“disproportionately higher than other sentences in cases
very similar to his,” Appellant’s Br. at 12, he has not
cited (and we have not found) any other case involving
circumstances similar to those here — such as the
unprosecuted attempt to sell a young child for sexual
purposes. We note that, under 18 U.S.C. § 2251A, any
person having custody or control of a minor who offers to
sell the minor with the knowledge that, as a consequence of
the sale, the minor will be the subject of child pornography
is subject to a thirty-year minimum sentence. Moreover,
Garnette’s sentence is lower than the 270-month sentence (a
50% increase from the guidelines sentence) recently upheld
in United States v. Meyer, 452 F.3d 998, 999-1000 (8th Cir.
2006) (involving the use of a child to produce sexually
explicit material).

[fn6] Although Garnette’s sentencing motion requested either
a downward departure pursuant to guidelines § 5K2.13
or a downward variance pursuant to 18 U.S.C. §
3553(a), the District Court only used the term “downward
departure” in its ruling. It is clear from the record,
however, that the District Court also considered —
and denied — Garnette’s request for a downward
variance. Immediately prior to ruling, the District Court
noted that it “considered the defendant’s arguments made in
his sentencing memorandum.” Sentencing Tr. at 30. In
addition, the sentence imposed indicates that the District
Court was not inclined to vary downward in sentencing
Garnette. As we held above, Garnette’s 255-month sentence
was reasonable under § 3553(a).