United States of America v. GEORGE R. LYCHOCK On Appeal from the United States District Court for the District…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-3311
UNITED STATES OF AMERICA,
Appellant
v.
GEORGE R. LYCHOCK
On Appeal from the United States District Court
for the District of New Jersey
(D. C. No. 06-cr-00039-1)
District Judge: Hon. Anne E. Thompson
Argued on February 5, 2009

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Before: RENDELL and ROTH, Circuit Judges
and PADOVA*, Senior District Judge
(Opinion filed August 25, 2009)
Sabrina G. Comizzoli, Esquire
Christopher J. Christie, Esquire
Caroline A. Sadlowski, Esquire (Argued)
Assistant United States Attorney
George S. Leone, Esquire
Chief, Appeals Division
Office of the United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102-2535
Counsel for Appellant
Paul B. Brickfield, Esquire (Argued)
Brickfield & Donahue
70 Grand Avenue, Suite 102
River Edge, NJ 07661
Counsel for Appellee
*Honorable John R. Padova, Senior United States District
Judge for the Eastern District of Pennsylvania, sitting by
designation.

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O P I N I O N
ROTH, Circuit Judge:
The government appeals a sentence of five years
probation and a $10,000 fine imposed on George Lychock for
his knowing possession of between 150 and 300 images of child
pornography. The applicable Sentencing Guidelines range, as
both parties had agreed, was 30 to 37 months. We agree with
the government that Lychock’s sentence was procedurally and
substantively unreasonable. We will vacate the judgment of
sentence and remand this case for resentencing.
I. BACKGROUND
On April 13, 2004, as part of a wider investigation into
an international child pornography enterprise, agents from the
Bureau of Immigration and Customs Enforcement conducted a
consensual search of George Lychock’s apartment and seized
two computer hard drives. Lychock quickly admitted that the
agents would find approximately fifty images of child
pornography on his computer. He further admitted that he knew
it was illegal to possess child pornography and acknowledged
that he had purchased access to child pornography websites
using his credit card. He asserted that he had stopped
purchasing access to such websites one year earlier but that he
still searched the Internet for free images.

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The Guidelines manual used for these calculations was the1
November 1, 2003, edition.
4
Ultimately, forensic examination of the hard drives
revealed far more than fifty images of child pornography, and
Lychock pled guilty to a one-count information charging him
with knowing possession of at least 150 but fewer than 300 such
images. Pursuant to a written plea agreement, Lychock
stipulated to the following Guidelines calculation: Because he
had no previous criminal record, Lychock was in Criminal
History Category I. The base offense level was 15, which was
increased by two levels because the pornographic images
involved prepubescent minors or minors under the age of twelve
years, see id. § 2G2.4(b)(1), and another two levels because the
offense involved the use of the computer, see id. § 2G2.4(b)(3).
Lychock received a three-level enhancement based on the
number of images in his possession. After crediting Lychock
with a three-level reduction based on his continued accepted of
responsibility, the parties reached an “agreed total offense level”
of 19. Finally, the parties agreed that “a sentence within the
Guidelines range . . . is reasonable” and that neither party would
seek or argue for any departure or adjustment from the range.
The applicable Guidelines range for Lychock’s criminal history
category and offense level was 30 to 37 months.1
Despite the agreement of the parties, the District Court
declined to impose a term of imprisonment. The court
acknowledged that “possession of child pornography is a serious
offense” and that the Guidelines range was based on “a global
consideration” of the harm done to victims. Nonetheless, the

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court characterized Lychock as basically “law abiding” and a
“young man” whose “background and history are in total
conflict with a jail term.” The court thus asserted that
imprisonment would “be counterproductive.” The court further
noted Lychock’s cooperation with law enforcement, his
acknowledgment of wrongdoing, his “supportive family,” his
decision to seek psychological help immediately, and the report
of his psychologist that he was benefitting from their sessions.
In imposing a sentence that was substantially lower than
the applicable Guidelines range, the District Court relied, in
part, on its view that imprisonment would neither deter criminal
conduct nor protect the public from further crimes. The court
opined,
The only benefit I could see [to imprisonment
would be] as a deterrent to others, and that is a
factor. . . . So other people would recognize that
they cannot subscribe to these images with
impunity. I am not persuaded that a jail term for
this defendant warrants, or is to be equated with
that value. The kind of psychological problem in
persons who are drawn to this kind of material it
seems to me is not going to be deterred by a jail
term for an internet porno observer. There is no
suggestion the public otherwise is threatened by
his conduct.
Based on these factors, the District Court imposed a sentence of
five-years probation and a $10,000 fine.

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The government appealed the sentence imposed by the
District Court as unreasonable. We have jurisdiction pursuant
to 28 U.S.C. § 1291.
II. DISCUSSION
After the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220 (2005), we review sentences for
“reasonableness.” See id. at 261–62. Reasonableness review
entails an inquiry into “whether the trial court abused its
discretion.” Rita v. United States, 551 U.S. 338, 127 S. Ct.
2456, 2465 (2007). Our review contains both a procedural and
a substantive component. Review for procedural reasonableness
focuses on whether the District Court committed any error in
calculating or explaining the sentence. Gall v. United States,
128 S. Ct. 586, 597 (2007). Review for substantive
reasonableness asks us to “take into account the totality of the
circumstances, including the extent of any variance from the
Guidelines range.” Id.
Recent Supreme Court decisions have clarified the
appropriate sentencing procedures for district courts. First, a
court must “correctly calculat[e] the applicable Guidelines
range” and “remain cognizant of [the Guidelines] throughout the
sentencing process. See id. at 597 n.6. As the Gall Court
elaborated, however, “[t]he Guidelines are not the only
consideration . . .. Accordingly, after giving both parties an
opportunity to argue for whatever sentence they deem
appropriate, the district judge should then consider all of the §
3553(a) factors to determine whether they support the sentence
requested by the party.” Id. at 596. These factors are:

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(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just
punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of
the defendant; and
(D) to provide the defendant with needed
educational or vocational training, medical care,
or other correctional treatment in the most
effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range
established for—
(A) the applicable category of offense committed
by the applicable category of defendant as set
forth in the guidelines–
. . .
(5) any pertinent policy statement—
(A) issued by the Sentencing Commission . . .
subject to any amendments made to such policy
statement by act of Congress . . . ;
. . .
(6) the need to avoid unwarranted sentence disparities
among defendants with similar records who have been
found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the
offense.

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18 U.S.C. § 3553. Finally, “[a]fter settling on the appropriate
sentence, [a district court] must adequately explain the chosen
sentence to allow for meaningful appellate review and to
promote the perception of fair sentencing.” Gall, 128 S. Ct. at
597. Though a district court may not automatically presume that
a sentence within the applicable Guidelines range is reasonable,
see Nelson v. United States, 129 S. Ct. 890, 892 (2009), the
Supreme Court has cautioned that a district court’s explanation
for “an unusually lenient or an unusually harsh sentence” must
include “sufficient justifications” for the deviation, see Gall,
128 S. Ct. at 594.
In the instant case, the District Court failed to properly
consider the § 3553 factors and failed to offer a sufficient
justification for its imposition of a sentence so substantially
below the applicable Guidelines range. United States v. Goff,
501 F.3d 250 (3d Cir. 2007), is instructive – particularly because
the same District Judge who sentenced Goff also sentenced
Lychock. Goff was prosecuted as part of the same international
investigation that uncovered Lychock’s criminal conduct. Id. at
251. Like Lychock, Goff pled guilty to possession of child
pornography, which he had accessed from Internet websites
using his credit card and home computer. Id. Goff’s advisory
Guidelines range was slightly higher than Lychock’s because of
the number of images involved, but he also had no criminal
history, had sought psychological treatment after his arrest, and
had a supportive family who wrote letters to the court. Id. at
253. Relying on these factors, the District Court imposed a
sentence of four months imprisonment, well below the
applicable Guidelines range of 37 months.

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We vacated Goff’s sentence and remanded the case for
resentencing. Noting that the District Court had failed to
mention § 3553(a) or Goff’s applicable Guidelines range at all
during the sentencing proceedings, we held that the “[t]he
District Court did not give the Guidelines the consideration they
are due.” Id. at 256. Moreover, in sentencing Goff, the District
Court failed to “adequately evaluate the seriousness of Goff’s
offense[,] . . . ‘the need to avoid unwarranted sentence
disparities among defendants with similar records who have
been found guilty of similar conduct,’ . . . [and] “the impact its
sentence would have on the deterrence of similar criminal
conduct.” Id. As the Goff Court explained,
All of these are substantive problems, . . . but they
are a product of the District Court’s procedurally
flawed approach. We reiterate what we have
previously explained: there is no mandatory
script for sentencing. Nevertheless, the . . .
procedures for sentencing exist to guide the
exercise of discretion. In disregarding those
procedures, the District Court put at risk the
substantive reasonableness of any decision it
reached.
Id.
The judge, who sentenced Goff, made similar errors here,
although she did so without the benefit of our Goff decision.
The District Court correctly calculated Lychock’s advisory
Guidelines range and considered several of the § 3553 factors.

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This Court’s recent en banc decision in United States v.2
Tomko does not change our analysis. In that case, we observed
that, “if the district court’s sentence is procedurally sound, we
will affirm it unless no reasonable sentencing court would have
imposed the same sentence on that particular defendant for the
reasons the district court provided.” 562 F.3d 558, 568 (3d Cir.
2009). We thus affirmed a sentence that departed from the
Sentencing Guidelines based on an “individualized
determination that the Guidelines range recommended an
excessive sentence.” Id. at 570. Here, in contrast, the District
10
Nonetheless, the court’s analysis was procedurally flawed and
resulted in a substantively unreasonable sentence.
As a procedural matter, the sentencing proceedings make
clear that the District Court did not consider the need to avoid
potential sentencing disparities among similarly situated
individuals. See 18 U.S.C. § 3553(a)(6). Indeed, the District
Court did not even mention this factor despite the fact that, in its
sentencing memorandum, the government explicitly invoked this
factor and highlighted the within-Guidelines sentences several
RegPay defendants had already received from other judges of
the District Court. A sentencing court need not discuss and
make findings as to each of the § 3553(a) factors, nor need the
court discuss every argument made by a litigant if an argument
is clearly without merit. United States v. Cooper, 437 F.3d 324,
329 (3d Cir. 2006). Where, however, the sentence imposed is
“far below the sentences given to similar offenders,”
consideration of this disparity deserves “particular care.” Goff,
501 F.3d at 256.2

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Court failed to consider all of the relevant factors and appears to
have made a determination based solely on a policy
disagreement with the Guidelines, see infra note 3, making the
sentence procedurally unreasonable.
The fact that the same district judge who sentenced Goff and3
Lychock has deviated substantially from the advisory Guidelines
range on every occasion in which she has sentenced similarly
situated defendants further supports the inference that Lychock’s
unusually lenient sentence results from a policy disagreement
with the Guidelines. See United States v. Matthews (Crim. No.
05-220); United States v. Bourne (Crim. No. 05-296); United
States v. Remesi (Crim. No. 05-335); United States v. Hunt
(Crim. No. 06-340).
11
Finally, as described above, the District Court relied, in
part, on its view that imprisonment would neither deter criminal
conduct nor protect the public from further crimes: “The kind
of psychological problem in persons who are drawn to this kind
of material it seems to me is not going to be deterred by a jail
term for an internet porno observer. There is no suggestion the
public otherwise is threatened by his conduct.” To the extent
that these assertions reflect a policy disagreement with the
Guidelines recommendations, such a disagreement is3
permissible only if a District Court provides “sufficiently
compelling” reasons to justify it. Gall, 128 S. Ct. at 597; see
also Kimbrough v. United States, 128 S. Ct. 558, 575 (2007)
(“[W]hile the Guidelines are no longer binding, closer review
may be in order when the sentencing judge varies from the
Guidelines based solely on the judge’s view that the Guidelines

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range fails properly to reflect § 3553(a) considerations even in
a mine-run case.”).
Neither here nor in Goff did the District Court offer a
reasoned explanation for its apparent disagreement with the
policy judgments of Congress regarding the appropriate
sentences for child pornography offenses. Such an explanation
is necessary so that, on appeal, we can determine whether the
disagreement is valid in terms of the § 3553 factors, the
Sentencing Guidelines, and the “perception of fair sentencing.”
See Gall, 128 S. Ct. at 597; cf. United States v. Cutler, 520 F.3d
136, 163 (2d Cir. 2008) (“Although . . . a sentencing court is
allowed to impose a sentence that varies from the Guidelines
based solely on policy considerations, including disagreements
with the Guidelines, the court is required . . . to state the basis
for its disagreement, along with sufficient justifications for the
extent of any departure.” (internal quotation marks omitted)).
The conclusory statement of personal belief provided in this
case does not suffice.
Lychock, however, argues the substantive propriety of his
sentence. He contends that the District Court simply made an
individualized determination that his age, acceptance of
responsibility, and lack of criminal history warranted the
downward variance from the Guidelines recommendation of 30
months imprisonment to a sentence of probation. A closer
examination of these characteristics, though, demonstrates that
none of them provides a “sufficient justification” for such a
significant deviation. See Gall, 128 S. Ct. at 597. At the time
of sentencing, Lychock was 37, only five years younger than the
average age for pornography/prostitution offenders nationwide;

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see United States Sentencing Commission, Sourcebook of
Federal Sentencing Statistics for Fiscal Year 2007, at Table 6
(“Age of Offenders in Each Primary Offense Category”),
available at http://www.ussc.gov/ANNRPT/2007/Table06.pdf.
Both Lychock’s acceptance of responsibility and lack of
criminal history were already reflected in his Guidelines
calculation. See U.S.S.G. § 3E1.1; Goff, 501 F.3d at 261 n.17.
Moreover, Lychock’s lack of criminal history is typical of
individuals convicted for possession of child pornography. See
Goff, 501 F.3d at 260–61 (citing United States Sentencing
Commission, Final Report on the Impact of United States v.
Booker on Federal Sentencing, March 2006, at Table 18,
available at http://www.ussc.gov/booker_report/Booker_Report.pdf).
Plainly, Lychock is in the “heartland” of offenders for
Guidelines purposes. See Rita, 551 U.S. at 351.
We do not mean to suggest that courts may never vary
from the Guidelines based on the generally “law-abiding” nature
of a first-time offender or a child pornography offender’s
decision to seek psychological treatment; indeed, the Guidelines
are advisory and are only one factor to be considered in
sentencing. See Booker, 543 U.S. at 246. Even in this case, the
government acknowledges that “the circumstances might have
supported a modest divergence from the [advisory Guidelines]
range.” The District Court’s decision to deviate from a 30–37
month Guideline range down to a sentence of probation,
however, cannot be justified solely by these factors.
We conclude that, by ignoring relevant factors and failing
to offer a reasoned explanation for its departure from the
Guidelines, the District Court once again “put at risk the

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substantive reasonableness of any decision it reached.” Goff,
501 F.3d at 256. That risk of unreasonableness was realized,
under the particular circumstances of this case, in Lychock’s
sentence of probation. In Goff, we held that a sentence of four
months was a substantively unreasonable punishment for
virtually the same crime committed by a similar individual. Id.
We outlined the harm caused by the purportedly “passive”
possession of child pornography and the “ample evidence of
Congress’s intent that offenses involving child pornography be
treated severely.” See id. at 258–59 & n.13. We need not repeat
that analysis here. It is enough to say that, by imposing a
sentence so far below the range suggested by the Guidelines and
stipulated to by the parties, the District Court did not adequately
take account of “the seriousness of the offense,” the need to
“promote respect for the law,” the need to “provide just
punishment,” or the considered view of Congress as reflected in
the Sentencing Guidelines. See 18 U.S.C. § 3553(a).
III. CONCLUSION
District courts enjoy a strong institutional advantage in
arriving at sentencing decisions and are generally entitled to
substantial deference. Gall, 128 S. Ct. at 597; Tomko, 562 F.3d
at 591. Nevertheless, for the reasons stated above, we will
vacate Lychock’s judgment of sentence and remand this case for
resentencing.

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