Waiver-by-Acquiescence at Sentencing and the Near-Irrebuttable Presumption for Below-Guidelines Terms: United States v. Petre (7th Cir. 2025)

Court: United States Court of Appeals for the Seventh Circuit

Panel: Circuit Judges Scudder, Jackson-Akiwumi, and Pryor

Argument/Decision: Argued February 23, 2024; Decided October 3, 2025

Disposition: Affirmed (Nonprecedential disposition under Fed. R. App. P. 32.1)

Introduction

This nonprecedential decision addresses two recurring features of federal sentencing appeals: preservation of alleged procedural error and appellate review of below-Guidelines sentences. Defendant-appellant Jacob W. Petre pled guilty to possession and receipt of child pornography, arising from conduct between 2015 and 2019 involving at least 1,432 images and 992 videos (Guidelines-equivalency of at least 75,832 images), including material depicting sexual violence against very young children. The district court (Chief Judge Sara Darrow) imposed 180 months’ imprisonment and lifetime supervised release—thirty months below the recalculated advisory range of 210–240 months following the court’s policy-based removal of the two-level “use-of-computer” enhancement under U.S.S.G. § 2G2.2(b)(6).

On appeal, Petre mounted both procedural and substantive challenges. Procedurally, he asserted the district court failed to consider the need to avoid unwarranted disparities under 18 U.S.C. § 3553(a)(6), especially for defendants with autism. Substantively, he contended the sentence did not adequately account for his autism and that the structure of the child-pornography Guidelines, coupled with policy variances, creates a “perfect storm” for disparities.

The Seventh Circuit rejected both lines of attack, emphasizing: (1) waiver-by-acquiescence where counsel expressly agrees the court addressed mitigation arguments and declines opportunities for elaboration; and (2) the “nearly irrebuttable presumption” that a below-Guidelines sentence is substantively reasonable.

Summary of the Opinion

Procedural challenge (alleged failure to address § 3553(a)(6) disparities): Waived. Defense counsel twice confirmed the court had addressed mitigation arguments and declined a post-sentencing invitation for further explanation. Under Seventh Circuit precedent, such acquiescence waives claims that principal mitigation arguments went unaddressed.
Alternative holding on the merits: Even absent waiver, correct calculation and careful consideration of the Guidelines range inherently reflects significant attention to avoiding unwarranted disparities (citing Gall).
Substantive reasonableness: No abuse of discretion. The district court grappled with Petre’s autism diagnosis but reasonably concluded he appreciated the wrongfulness of his conduct (e.g., acknowledging to a minor that requested content was “illegal”), and emphasized aggravating factors: the duration, extraordinary volume, extreme nature of the material, and direct solicitation from minors. Because 180 months was below the bottom of the advisory range (210 months), the sentence carried a “nearly irrebuttable presumption” of reasonableness that Petre did not overcome.
Structural attack on the child-pornography Guidelines: Rejected as foreclosed by circuit precedent (Maulding; Huffstatler).

Analysis

Precedents Cited and Their Role

United States v. Faulkner, 885 F.3d 488 (7th Cir. 2018): Provides the two-step framework for sentencing appeals: review for procedural error, then substantive reasonableness. The court followed this sequence in Petre.
United States v. Butler, 58 F.4th 364 (7th Cir. 2023); United States v. Perez, 21 F.4th 490 (7th Cir. 2021); United States v. Garcia-Segura, 717 F.3d 566 (7th Cir. 2013): Collectively stand for waiver-by-acquiescence. When the district court asks if it has addressed the defendant’s principal mitigation arguments and counsel agrees—or declines invitations to elaborate—arguments that the court failed to consider mitigation are waived on appeal. Petre’s counsel twice assented and once explicitly declined elaboration; that foreclosed the procedural claim.
Gall v. United States, 552 U.S. 38 (2007): A correct and careful Guidelines calculation reflects significant consideration of avoiding unwarranted disparities (§ 3553(a)(6)). The Seventh Circuit used Gall to reinforce that—even if not waived—Petre’s disparity claim would fail on the merits.
United States v. Corner, 598 F.3d 411 (7th Cir. 2010) (en banc); Spears v. United States, 555 U.S. 261 (2009); Kimbrough v. United States, 552 U.S. 85 (2007): These cases recognize district courts’ authority to disagree with Guidelines as a matter of policy. The district court invoked this power to remove the two-level computer-use enhancement under § 2G2.2(b)(6), a common policy variance in child-pornography cases.
United States v. Patel, 921 F.3d 663 (7th Cir. 2019); United States v. Rosen, 726 F.3d 1017 (7th Cir. 2013): Frame substantive reasonableness review—asking whether the district court gave meaningful consideration to § 3553(a) and arrived at an objectively reasonable sentence in light of the case-specific circumstances.
United States v. Maulding, 627 F.3d 285 (7th Cir. 2010) (per curiam); United States v. Huffstatler, 571 F.3d 620 (7th Cir. 2009) (per curiam): Reject the argument that the child-pornography Guidelines themselves inherently create unwarranted disparities. Petre’s structural “perfect storm” contention was foreclosed by these cases.
United States v. Wallace, 531 F.3d 504 (7th Cir. 2008): “We have never deemed a below-range sentence to be unreasonably high.” This line underscores the uphill nature of appeals attacking below-range sentences as too long.
United States v. Miller, 829 F.3d 519 (7th Cir. 2016): Articulates the “nearly irrebuttable presumption” that a below-Guidelines sentence is substantively reasonable. The court relied on Miller to conclude Petre could not overcome that presumption.

Legal Reasoning

The court’s reasoning proceeds in two principal stages: procedural review and substantive review.

1) Procedural Error: Waiver and the Disparity Factor

Petre argued procedural error because the district court purportedly failed to consider § 3553(a)(6) (unwarranted disparities), especially as to defendants with autism. The panel treated this as waived. Three moments at sentencing mattered:

Before announcing the sentence, the judge asked if all mitigation arguments were addressed; defense counsel answered yes.
After pronouncing sentence, the judge invited further elaboration; defense counsel declined.
When counsel later lodged a general “procedural” objection, the judge again offered elaboration; counsel declined a second time.

Under Butler, Perez, and Garcia-Segura, these exchanges constitute waiver-by-acquiescence: a defendant cannot claim on appeal that a principal contention went unaddressed after assuring the court it had been addressed and refusing the court’s offer to explain further. The panel noted that, even if considered on the merits, Gall teaches that careful calculation and consideration of the Guidelines range inherently reflect attention to § 3553(a)(6). That alternative merits rationale independently defeats Petre’s procedural claim.

2) Substantive Reasonableness: Autism, Aggravating Factors, and the Below-Range Presumption

Turning to substance, the court applied abuse-of-discretion review and asked whether the district court gave meaningful attention to the § 3553(a) factors and fashioned an objectively reasonable sentence. Two features stand out:

Consideration of autism and culpability: The district court engaged with Petre’s autism diagnosis and clinical submissions but found, based on record admissions, that he understood the wrongfulness of his acts (e.g., telling a 15-year-old that the requested content was “illegal” and expressing post-arrest that he needed to stop). That factual assessment undercut the claim that autism materially diminished culpability.
Aggravating circumstances: The judge emphasized the “sheer volume” of images; extreme content (sexual violence, bestiality, bondage, and abuse of prepubescent children, including infants/toddlers); multi-year conduct; and direct solicitation of minors. These considerations supported a lengthy sentence despite the court’s policy-based mitigation (removal of the computer-use enhancement).

Critically, the 180-month sentence was below the advisory range of 210–240 months—already capped by the 20-year statutory maximum. Under Wallace and Miller, below-range sentences in the Seventh Circuit carry a powerful presumption of reasonableness—indeed, “nearly irrebuttable.” Petre’s showing did not overcome that presumption, particularly given the seriousness and persistence of the offense conduct.

Impact and Practical Significance

Although nonprecedential, the order is an instructive synthesis of Seventh Circuit sentencing doctrine with concrete practice pointers:

Preservation Matters: Defense counsel must explicitly request further explanation and object with specificity if asserting that the court failed to address a principal mitigation argument (e.g., § 3553(a)(6) comparators). Acquiescence will be treated as waiver on appeal.
Comparators Must Be Comparable: Reliance on national data about sentences for defendants with autism is unpersuasive unless tightly matched to the offense conduct and offender characteristics at issue. The court endorsed the district judge’s view that Petre’s cited cases were not suitable comparators.
Autism is Not Dispositive: A diagnosis can be relevant under § 3553(a)(1), but where the record shows knowledge of illegality, courts may reasonably discount diminished culpability arguments. Strong, case-specific clinical evidence linking the diagnosis to the offense decision-making is essential.
Policy Disagreements Are Available—but Not Outcome-Determinative: District courts in the Seventh Circuit may reject particular Guidelines (e.g., § 2G2.2(b)(6) computer-use) on policy grounds, yet still impose significant sentences where aggravating facts demand it.
Below-Guidelines Sentences Are Hard to Upset: The Seventh Circuit’s “nearly irrebuttable presumption” for below-range sentences, coupled with Wallace’s observation that such sentences have not been deemed unreasonably high, makes appellate challenges especially difficult.
Child-Pornography Guideline Structure: Structural attacks on § 2G2.2 as disparity-producing remain foreclosed by circuit precedent (Maulding, Huffstatler). Arguments must focus on case-specific facts and policy variances, not global invalidation.

Complex Concepts Simplified

Procedural vs. Substantive Reasonableness:
- Procedural looks at the process: Did the judge calculate the Guidelines correctly, address parties’ arguments, and consider § 3553(a) factors?
- Substantive asks if the length of the sentence is reasonable given the statutory factors and case facts.
Waiver vs. Forfeiture:
- Waiver is intentional relinquishment—e.g., telling the judge all mitigation arguments were addressed and declining further explanation. Waived arguments generally cannot be raised on appeal.
- Forfeiture is failing to object through oversight; it can sometimes be reviewed for plain error.
Policy Disagreement vs. Departure/Variance:
- A policy disagreement occurs when the judge declines to apply a Guideline because it poorly tracks culpability (e.g., ubiquitous computer-use enhancement in internet crimes), authorized by Kimbrough/Spears/Corner.
- A variance is a sentence outside the advisory range based on § 3553(a) factors; a departure is a within-Guidelines mechanism provided by the Guidelines themselves. Policy disagreements typically manifest as variances.
Statutory Maximum Capping the Guidelines: Even if the Guidelines calculation would yield a range above the statutory maximum, the statute caps the sentence (e.g., here, 20 years per count), which can compress the effective range.
Video-to-Image Equivalency in § 2G2.2: For counting the “number of images” enhancement, each video is treated as 75 images. That explains the jump from 1,432 images and 992 videos to an equivalency of at least 75,832 images.
Supervised Release in Sex Offenses: 18 U.S.C. § 3583(k) sets a supervised release range of five years to life for certain sex offenses. Lifetime terms are common and were imposed here.

Conclusion

United States v. Petre reinforces two settled but potent Seventh Circuit principles. First, waiver-by-acquiescence at sentencing is real: if counsel tells the court it has addressed mitigation and declines an invitation to elaborate, a later procedural claim that the court failed to consider an argument—such as § 3553(a)(6) disparity—will not survive on appeal. Second, appellate challenges to below-Guidelines sentences confront a “nearly irrebuttable presumption” of reasonableness. In the child-pornography context, where the Seventh Circuit has declined to condemn the Guidelines as disparity-producing, defendants must marshal case-specific, compelling evidence to move the needle.

Here, the district court’s balanced approach—granting a policy variance (removing the computer-use enhancement), carefully weighing autism-based mitigation, and imposing a still-substantial sentence based on extreme and aggravating facts—was well within its discretion. The decision offers a clear roadmap for practitioners: preserve objections with specificity, ground disparity arguments in truly comparable cases, and recognize the formidable deference that attaches to below-range sentences on appeal.

Note: This is a nonprecedential disposition and may be cited only in accordance with Fed. R. App. P. 32.1. Its persuasive value lies in how it applies existing Seventh Circuit doctrine on waiver and substantive reasonableness to a common pattern of arguments in child-pornography sentencing appeals.