November 15, 2017
from the United States District Court for the Southern
District of Illinois. No. 3:13-CR-30182-DRH-1 - David R.
Wood, Chief Judge, Manion, and Kanne, Circuit Judges.
Oberg possessed large quantities of child pornography that he
produced himself. On his home desktop computer, investigators
found more than three hundred sexually explicit photos and
three videos of his five-year-old daughter exposing her
genitals. He pleaded guilty to two counts of sexual
exploitation of a minor and one count of pos- session of
visual depictions of a minor under age twelve engaged in
sexually explicit conduct. The district judge sentenced him
to a within-Guidelines, 30-year prison term-the statutory
maximum for one count of sexual exploitation, 18 U.S.C.
§ 2251(e). He argues on appeal that his sentence is
sub-stantively unreasonable because the Sentencing Guidelines
for child pornography offenses are too severe and because the
judge did not correctly weigh the factors set forth in 18
U.S.C. § 3553. We affirm.
Oberg came to the attention of the police when his daughter,
A.O., told her mother (whom Oberg had divorced two years
earlier) that she was taking pictures of her dog because her
father liked to take pictures of her "private
area." A police search of his home revealed that Oberg
had 337 photos and three videos of A.O. exposing her
genitals. Two of the videos show A.O. seated with her legs
spread, rubbing a clear gel onto her vagina; in the second
video, the song "Sexy and I Know It" plays in the
background. In the third video, A.O. is lying on her back
with her legs spread, and a man's index finger enters her
federal grand jury indicted Oberg on two counts of sexually
exploiting a minor, 18 U.S.C. § 2251(a), and one count
of possessing child pornography, 18 U.S.C. §
2252(a)(4)(B). Oberg pleaded guilty as charged. The range for
a prison term for counts 1 and 2 is 15-30 years, and for
count 3 is 5-20 years. 18 U.S.C. §§ 2251(e),
probation officer calculated a Guidelines term of 360 months
for counts 1 and 2 and a term of 240 months for count 3
(based on an offense level that was capped at 43,
see U.S.S.G. ch. 5, pt. A, cmt. 2, and a criminal
history score of I). The officer calculated a base offense
level of 32, U.S.S.G. § 2G2.1(a), that she increased
four levels because the victim was five years old,
see U.S.S.G. § 2G2.1(b)(1)(A), two levels
because the offense involved a sexual act, see
U.S.S.G. § 2G2.1(b)(2)(A), four levels because the
material portraying a finger penetrating A.O.'s vagina
was sadistic or masochistic conduct, see U.S.S.G.
§ 2G2.1(b)(4), two levels because Oberg was her father,
see U.S.S.G. § 2G2.1(b)(5), and five levels
because Oberg took pictures or videos of his naked daughter
on at least 24 occasions-a frequency that amounted to a
"pattern of activity, " see U.S.S.G.
§ 4B1.5(b). The probation officer then reduced
Oberg's offense level by two levels for acceptance of
responsibility, U.S.S.G. § 3El.l(a). Oberg did not
object to these calculations.
did object, however, to the Guidelines' recommended
sentence as being unreasonably long. Oberg argued first that
the child-pornography Guidelines (e.g., § 2G2.1) result
in "unduly severe" sentences and are
"inherently flawed" because they lack empirical
support. He added that the punitive dimension of these
Guidelines is "driven up by Congressional
directives" and affect the "vast majority" of
offenders without regard to individual culpability and
dangerousness. Oberg also argued that certain § 3553(a)
factors-the defendant's history and characteristics, the
need to protect the public, and the availability of
treatment-required a lesser sentence in his case because, he
contended, he had no relevant criminal history, there was
"absolutely no evidence ... that [he had] participated
in similar activities or conduct with anyone other than A.O,
" and he was unlikely to reoffend with monitoring and
treatment that he could receive on supervised release. He
requested a 15-year prison term, the statutory minimum.
district court adopted the probation officer's proposed
findings and sentenced Oberg to thirty years in prison and a
lifetime of supervised release. Responding to Oberg's
argument that the Guidelines were flawed, the court explained
that Congress "created the whole Guideline system"
and it was "their choice" to "give direction
to the Sentencing Commission." The court addressed the
§ 3553(a) sentencing factors and stated that it
considered the offense to be "extremely serious"
and noted that Oberg's lack of criminal history is
commonplace among child pornography offenders.
appeal, Oberg challenges his sentence as substantively
unreasonable. Like some of our sister circuits, he questions
the usefulness of the Guidelines in child pornography cases
because they are shaped by Congress and lack a basis in
empirical data. See, e.g., United States v. Dorvee,
616 F.3d 174, 184-88 (2d Cir. 2010); United States v.
Grober, 624 F.3d 592, 603-09 (3d Cir. 2010). Oberg
contends that our decision in United States v.
Price, 775 F.3d 828 (7th Cir. 2014), requires sentences
in child pornography cases to fall below the Guidelines'
range in order to be reasonable. In Price, we
upheld-as a proper exercise of discretion-the district
judge's decision to disagree with the child-pornography
Guidelines and impose a below-Guidelines, 18-year sentence
for a defendant who had molested his daughter, shared
sexually explicit photos of her on the internet, and sexually
abused his adolescent sister. Id. at 841.
while district courts may disagree with the
Guidelines' policies and impose a lower sentence, it is
not true that they must. United States v.