United States v. Jacob Petre

sexual violence against minors, including infants and toddlers. Petre admitted to sharing this child pornography in online groups about once a month as well as directly contacting minor victims and soliciting sexually explicit content from them. On one occasion, Petre acknowledged to a fifteen-year-old victim that the images he requested were "illegal."

On April 20, 2021, a grand jury returned an indictment charging Petre with possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2) and receipt of child pornography in violation of §§ 2252A(a)(2)(A) and (b)(1). On November 22, 2022, Petre pled guilty to both counts without a plea agreement. Before sentencing, the United States Probation Office prepared a revised Presentence Investigation Report ("PSR"). The probation officer who prepared the PSR calculated an adjusted offense level of 39, based on Petre receiving and possessing visual depictions of minors and specific characteristics of the images. See U.S.S.G. §§ 2G2.2(a)(2), (b)(2), (b)(3)(F), (b)(4)(A), (b)(4)(B), (b)(5), (b)(6), and (b)(7)(D). With no criminal history points, Petre's offense level yielded an advisory guideline range of 240 months' imprisonment.¹The PSR also explained that the statutory range for Petre's term of supervised release was five years to life per count. See 18 U.S.C. § 3583(k); U.S.S.G. § 5D1.2(b)(2).

At sentencing, the district court discussed the PSR with the parties and removed for policy reasons a two-level enhancement for Petre's use of a computer to complete the crime. See United States v. Corner, 598 F.3d 411, 415 (7th Cir. 2010) (en banc) ("[D]istrict judges are at liberty to reject any Guideline on policy grounds—though they must act reasonably when using that power." (citing Spears v. United States, 555 U.S. 261 (2009), and Kimbrough v. United States, 552 U.S. 85 (2007))). With that enhancement removed, the district court recalculated Petre's total offense level to 37, which yielded a sentencing guideline range of 210 to 240 months' imprisonment. See 18 U.S.C. §§ 2252A(a)(2)(A) & (b)(1).

Next, the district court heard argument regarding the appropriate sentence. The government requested a guideline sentence and a lifetime term of supervised release. It focused on the seriousness of Petre's offense, the large volume of images in Petre's

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collection, the nature of the images, and the pattern of conduct occurring over several years. Petre, on the other hand, requested 60 months' imprisonment followed by five years of supervised release. Petre's counsel argued that this was warranted because of Petre's mental health conditions and neurodevelopmental challenges, including autism, which made it difficult for Petre to appreciate the wrongfulness of his conduct. Counsel cited to federal sentencing data from courts across the country showing that offenders with autism were sentenced to significantly shorter sentences than "typically developed individuals" charged with similar crimes.

After hearing argument, the district court sentenced Petre to 180 months' imprisonment. The court began by explaining the seriousness of Petre's crimes, noting the victim impact statements provided prior to sentencing. The court then noted the four-year period over which Petre committed his crimes and the "sheer volume" of images Petre admitted to possessing or receiving; even without accounting for videos, he possessed or received over double the number of images required to reach the maximum 5-level enhancement for quantity of images. See U.S.S.G. § 2G2.2(b)(7)(D). The court also noted that some of the images and videos were particularly disturbing, involving sexual violence and abuse on prepubescent minors, bestiality, and bondage. When reviewing the 18 U.S.C. § 3553 sentencing factors, the district court acknowledged that Petre had no prior criminal history and had accepted responsibility for his conduct. It disagreed, however, with Petre's arguments that he did not appreciate the wrongfulness of his conduct. The district court noted that Petre's conduct displayed a level of sophistication by directing and soliciting others to provide him with illicit images. The district court also noted Petre's comments indicating that he needed to stop demonstrated that he knew his conduct was wrong. The district court also found the data outlined in the cases cited by Petre's attorney were not suitable comparators to the facts of Petre's case.

Prior to announcing the sentence, the district court asked if it had addressed all of Petre's "principal arguments in mitigation." Petre's counsel responded that he

"believe[d] the Court[] addressed them. Yes." After imposing a sentence of 180 months' imprisonment, restitution, a $200 special assessment, and a lifetime term of supervised release, the district court asked counsel if he sought "any further elaboration as to the reasons for imposing [the] sentence," and counsel responded, "No, your Honor."

Shortly after advising Petre of his appeal rights, the district court asked if Petre's counsel had anything further, to which counsel responded that "out of an abundance of caution to protect my client's rights, we would just formally object to the sentencing

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procedure …." The district court sought clarification, asking counsel to confirm that the court had addressed all of Petre's mitigation arguments. Counsel for Petre then explained that it was "not an issue of addressing [the arguments, but instead] how the [c]ourt has taken [them] into consideration." The district court again questioned whether counsel sought further elaboration as to the court's reasons for the sentencing, and Petre's counsel responded in the negative. Petre now appeals his sentence.

II. D ISCUSSION

We use a "two-step process" to review a sentencing determination. United States

v. Faulkner, 885 F.3d 488, 498 (7th Cir. 2018). First, we ask whether the district court committed procedural error, "such as … failing to consider the § 3553(a) factors." Id. (internal citation and quotation omitted). If we find no procedural error, then we review the sentence for substantive reasonableness. Id.

Petre first argues that the district court procedurally erred by failing to consider the need to avoid unwarranted sentencing disparities between similarly situated defendants. See 18 U.S.C. § 3553(a)(6). He tells us that the court failed to compare his sentence to those of other defendants who have been diagnosed with autism. We review procedural challenges de novo. Faulkner, 885 F.3d at 498. When a district court asks defense counsel whether arguments in mitigation have adequately been addressed and counsel responds that the court's explanation is satisfactory, the defendant may not argue on appeal that his principal argument went unaddressed. United States v. Butler, 58 F.4th 364, 367-68 (7th Cir. 2023); see also United States v. Perez, 21 F.4th 490, 494 (7th Cir. 2021). Here, the district court gave Petre three opportunities to raise the alleged procedural error below, but Petre declined. First, immediately before announcing a sentence—and immediately after discussing the parties' arguments—the court asked Petre's counsel if it addressed all of Petre's arguments in mitigation and Petre's counsel answered that the court had. Second, immediately after announcing Petre's sentence, the court asked if counsel wished for further elaboration, and counsel declined. And third, despite prompting by the court after counsel raised a "formal objection" to the "sentencing procedure," counsel stated that the court did not need to elaborate further on its reasons. The district court gave Petre multiple "meaningful opportunities to identify any overlooked arguments," yet Petre failed to make use of those opportunities. Perez, 21 F.4th at 494. That constitutes waiver. Id.; Butler, 58 F.4th at 367-68; see also United States v. Garcia-Segura, 717 F.3d 566, 569 (7th Cir. 2013) (holding that a defendant's affirmative response to a judge's question of whether it had addressed his main mitigation arguments can waive an appellate

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argument to the contrary). Even if not waived, the Supreme Court has explained that when a judge correctly calculates and carefully reviews the United States Sentencing Guideline range, she has necessarily given significant weight and consideration to the need to avoid unwarranted disparities. Perez, 21 F.4th at 494 (citing Gall v. United States,

552 U.S. 38, 54 (2007)).

Petre next argues that his sentence is substantively unreasonable. We review a substantive reasonableness challenge under an abuse of discretion standard. Faulkner,

885 F.3d at 498. "A sentence is substantively reasonable 'if the district court gives meaningful consideration to the factors enumerated in 18 U.S.C. § 3553(a), including the advisory Sentencing Guidelines, and arrives at a sentence that is objectively reasonable in light of the statutory factors and the individual circumstances of the case.'" United States v. Patel, 921 F.3d 663, 672 (7th Cir. 2019) (quoting United States v. Rosen, 726 F.3d 1017, 1027 (7th Cir. 2013)). Petre argues his sentence is substantively unreasonable because the district court failed to adequately consider his autism diagnosis and because the combination of the unduly harsh child pornography provisions in the Sentencing Guidelines and the district court's ability to vary downward based on policy disagreements creates a "perfect storm" resulting in sentencing disparities. Beginning with the latter argument, we have previously considered and rejected Petre's position that the Guidelines themselves create unwarranted sentencing disparities in the child pornography context. See United States v. Maulding, 627 F.3d 285, 287-88 (7th Cir. 2010) (per curiam); United States v. Huffstatler, 571 F.3d 620, 623-24 (7th Cir. 2009) (per curiam). Petre provides no persuasive reason to depart from our precedent, so we do not discuss this argument further.

Regarding Petre's autism diagnosis argument, the record reflects that Petre is mistaken. The district court did consider his diagnosis, but it simply disagreed with his counsel's characterization of the clinical psychologist's reports presented at sentencing as showing Petre had no ability to appreciate the wrongfulness of his actions. Indeed, the district court explicitly relied on Petre's acknowledgment to one victim that the content he was requesting was "illegal." The court also found that Petre's post-arrest statements about wanting to stop viewing the offending materials showed that he did appreciate the wrongfulness of his actions. Then, after considering Petre's autism, the district court identified specific aggravating circumstances that warranted the imposition of its sentence, such as the four-year length of Petre's conduct, the "sheer volume" of illegal content, Petre's conscious choice to engage in illegal conduct, the

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nature of the images and videos, and his direct solicitation of explicit content from minors.

More to the point, though, is that "[w]e have never deemed a below-range sentence to be unreasonably high." United States v. Wallace, 531 F.3d 504, 507 (7th Cir. 2008). When a court imposes a below-range sentence, the defendant on appeal must overcome a "nearly irrebuttable presumption" that the sentence is reasonable. United States v. Miller, 829 F.3d 519, 527 (7th Cir. 2016). The district court here calculated Petre's guidelines range to be 210 to 240 months and imposed a sentence of 180 months. Given the considerations and aggravating circumstances identified by the district court, Petre has not rebutted the presumption that his sentence 30 months below the bottom of the guidelines range is reasonable. We see no abuse of discretion.

AFFIRMED

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