United States v. Nikonova

United States Court of Appeals
Fifth Circuit
F I L E D
February 26, 2007
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-31093
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ELIZAVETA NIKONOVA,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Middle District of Louisiana
m 3:05-CR-4-ALL
___________________________
Before SMITH, BENAVIDES, and PRADO,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Elizaveta Nikonova appeals the sentence
she received following her plea of guilty of one
count of possession of child pornography in
violation of 18 U.S.C. § 2252A(a)(5)(B). We
affirm.
I.
Nikonova is a Russian citizen who immi-
grated to the United States in 1996. In 2004,
while she was attending Louisiana State Uni-
versity, law enforcement officers discovered
that she was using her laptop computer to ac-
quire and store child pornography. From the
computer, authorities eventually recovered
seven image files and six movie files depicting
child pornography.
Nikonova claims to have become interested

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2
in child pornography only after watching an
episode of the television show “Law & Order
SVU” and that her interest in the material was
80% motivated by a desire to conduct scien-
tific research and 20% by personal gratifica-
tion. She confessed that she knowingly and in-
tentionally possessed the pornography. In her
plea agreement, she waived her right to appeal
her conviction and sentence subject to three
exceptions: (1) punishment imposed in excess
of the statutory maximum; (2) punishment
constituting an upward departure; and (3) “the
applicability of . . . Blakely v. Washington [,
542 U.S. 296 (2004),] to the United States
Sentencing Guidelines.”
Nikonova’s plea agreement was filed in the
district court on January 13, 2005, the day af-
ter the Court issued United States v. Booker,
543 U.S. 220 (2005). The district court stated
to Nikonova, with regard to her reservation of
the right to appeal the application of Blakely
to the federal sentencing guidelines, that the
Supreme Court had
kind of taken care of that . . . certain parts
of the Guidelines are no longer effective
and no longer mandatory. So, although
you reserve this right in the plea agreement,
for all practical purposes, that has already
been taken care of; do you understand
that?” Nikonova stated that she did under-
stand and that she appreciated that, “other
than those reservations in the plea agree-
ment”, she had no right to appeal “anything
else that happens in this case.
At sentencing the district court relied on a
presentence investigation report (“PSR”) that,
inter alia, recommended a four-level increase
in Nikonova’s offense level because certain
photographs in her possession depicted sadis-
tic images of prepubescent children having in-
tercourse with adults. The PSR calculated that
Nikonova’s offense level was 22, which, com-
bined with her criminal history category of I,
yielded a guideline range of 41-51 months’ im-
prisonment. Nikonova objected to the upward
adjustment for sadistic images, arguing that,
although the images were sadistic, the govern-
ment had not adequately proved that she had
intentionally ordered and received them. She
also moved the court to depart downward
from the guidelines and sentence her to proba-
tion. The court overruled Nikonova’s ob-
jection to the upward adjustment, declined to
depart from the guideline range, and sentenced
Nikonova to 41 months.
After Nikonova filed her notice of appeal,
the government filed a Federal Rule of Crim-
inal Procedure 35 motion to reduce the sen-
tence based on her assistance in the investiga-
tion and prosecution of others. The district
court granted the motion, reduced Nikonova’s
offense level by two levels, and imposed a
sentence of 31 months.
II.
The government contends that Nikonova
has waived her right to appeal. We disagree.1
We review waivers of appeal de novo. See
United States v. Baymon, 312 F.3d 725, 727
(5th Cir. 2002). We use ordinary principles of
contract interpretation to determine whether a
1 We disagree with the government’s contention
that, by failing to brief the waiver issue in her op-
ening brief, Nikonova waived the argument that she
has preserved her right to appeal. The government
moved for dismissal of the appeal on the basis of
waiver, but because it was the government’s mo-
tion, Nikonova was hardly obligated to address the
issue until the government briefed it in this court.
Nikonova’s response in her reply brief adequately
preserved the issue.

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3
waiver applies,2 but we construe waivers nar-
rowly and against the government.3
The government contends that Nikonova
retained only the right to raise a Sixth Amend-
ment challenge to the guidelines analogous to
the challenge to the Washington state guide-
lines in Blakely. Although Nikonova’s collo-
quy with the district court might provide some
support to this interpretation of the agreement,
we need not look beyond the plain language of
the plea where, as here, it obviously does not
waive the right to appeal.4
By preserving an appeal based on the ap-
plicability of Blakely to the guidelines, Niko-
nova maintained her right to benefit from the
Supreme Court’s prescribed remedy for the
problem (implied by the reasoning of Blakely)
that the then-mandatory guidelines were un-
constitutional. One consequence of Booker’s
holding that Blakely applies to the federal
guidelines is that those guidelines became ad-
visory, and courts are to look to all the factors
described in 18 U.S.C. § 3553(a), instead of
just to the guidelines, to devise a “reasonable”
sentence. See Booker, 543 U.S. at 259-60.
Under Booker, a properly calculated guidelines
range is not the exclusive basis for a legal sen-
tence but instead is a highly relevant factor in
our review of sentences to see whether they
satisfy the Supreme Court’s criterion of rea-
sonableness. See United States v. Duhon, 440
F.3d 711, 716 (5th Cir. 2006), petition for
cert. filed (May 18, 2006) (No. 05-11144). It
follows that Nikonova’s Blakely reservation
entitles her to argue on appeal that her sen-
tence is unreasonable both because the district
court miscalculated the relevant guideline
range and because it failed adequately to con-
sider factors counseling in favor of a down-
ward departure.5
III.
The parties devote substantial argument to
whether the sadistic-image enhancement that
the district court applied has an intent require-
ment that was met in this case. We need not
resolve this issue, because Nikonova’s sen-
tence is reasonable even if the sadistic-images
enhancement should not have applied. With-
out the four-level enhancement for sadistic im-
ages, her guideline range would have been 27-
33 months. See U.S.S.G. ch. 5 pt. A. Be-
cause her sentence of 31 months falls within
that range, it is entitled to a presumption of
reasonableness.6 The relevant question is not
whether the enhancement should have applied,
but whether Nikonova has rebutted the pre-
2 United States v. McKinney, 406 F.3d 744,
746 (5th Cir. 2005).
3 See United States v. Harris, 434 F.3d 767,
770 & n.2 (5th Cir. 2005), cert. denied, 126 S. Ct.
1897 (2006).
4 See McKinney, 406 F.3d at 746 (stating that
a waiver is to be ascertained from the plain lan-
guage of the agreement).
5 We find this reasoning to be particularly apt
when we consider that the government could have
drafted a plea agreement explicitly limiting Niko-
nova’s right to appeal to a more narrow Sixth
Amendment issue. Instead the agreement contained
the broad phrase “the applicability of [Blakely] to
the United States Sentencing Guidelines.” As not-
ed above, we construe waivers of appeal narrowly
and against the government. Harris, 434 F.3d at
770 & n.2.
6 See United States v. Medina-Argueta, 454
F.3d 479, 483 (5th Cir. 2006) (stating that where
“the district court miscalculates the Guideline
range yet imposes a sentence that falls within a
properly calculated guideline range, the sentence
enjoys a presumption of reasonableness”).

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4
sumption of reasonableness that attaches to the
sentence even if application of the enhance-
ment was incorrect.
Nikonova has not rebutted the presumption
of reasonableness. To assess reasonableness,
we look to the factors set forth in § 3553(a).
See Booker, 543 U.S. at 359-60; Medina-
Argueta, 454 F.3d at 484. Although Niko-
nova argues that the district court should have
departed downward, we lack jurisdiction to re-
view a discretionary decision not to depart
downward from the guideline range. See Unit-
ed States v. Hernandez, 457 F.3d 416, 424
(5th Cir. 2006). Instead, we review to deter-
mine whether the district court’s imposition of
a guideline sentence instead of a non-guideline
sentence was reasonable.7
This court has not articulated the standard
by which a defendant may rebut the presump-
tion of reasonableness that attaches to a guide-
line sentence. We have, however, stated that,
where a court has imposed a sentence within a
properly calculated guideline range, “we will
infer that the Judge has considered all the fac-
tors set forth for a fair sentence in the Guide-
lines.” United States v. Mares, 402 F.3d 511,
519 (5th Cir.), cert. denied, 126 S. Ct. 43
(2005). Furthermore, in light of our deference
to a sentencing judge’s discretion under Book-
er, we will rarely declare that such a sentence
is unreasonable. Id. 8
A non-guideline sentence is unreasonable in
light of the statutory sentencing factors where
it “(1) does not account for a factor that
should have received significant weight,
(2) gives significant weight to an irrelevant or
improper factor; or (3) represents a clear error
of judgment in balancing the sentencing fac-
tors.” United States v. Smith, 440 F.3d 704,
708 (5th Cir. 2006). Nikonova suggests that
we should apply the same test to determine
whether a guideline sentence is reasonable.
See Alonzo, 435 F.3d at 554. To apply the
test in the same manner to guideline sentences
and non-guideline sentences alike, however,
would ignore the presumption of reasonable-
ness that applies to guideline sentences and
would disregard the discretion appropriately
afforded to a district court where it has consid-
ered all the § 3553(a) factors. Therefore, the
presumption of reasonableness that attaches to
a properly calculated guideline sentence is re-
butted only where the sentence falls so far
afoul of one of the standards in Smith as to
constitute a clear error in the court’s exercise
of its broad sentencing discretion.9
7 See United States v. Alonzo, 435 F.3d 551,
554 (5th Cir. 2006) (opining that guideline sen-
tences are not per se reasonable).
8 “[I]f the district judge does use the Guidelines,
then the sentence is unlikely to be problematic. . .
. It will be the rare sentence indeed that was re-
quired under the Guidelines before Booker bot
Forbidden afterward, when discretion has gone up
(continued...)
8(...continued)
rather than down. United States v. Gama-Gon-
zalez, 469 F.3d 1109, 1110 (7th Cir. 2006).
9 Even circuits that do not presume that a guide-
line sentence reflects consideration of all of the §
3553(a) factors afford district courts broad discre-
tion in sentencing where the appropriate consider-
ation has taken place. See United States v.
Jimenez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006)
(en banc) (pointing out that, even after consider-
ation of the factors, multiple sentences could be
“reasonable,” and “[a]ssuming a plausible ex-
planation and a defensible overall result, sentencing
is the responsibility of the district court”), cert.
denied, 127 S. Ct. 928 ( 2007); United States v.
Cooper, 437 F.3d 324, 330-32 (3d Cir. 2006)
(continued...)

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Here, we discern no such error. Nikonova
focuses on three of the § 3553(a) factors that
she believes render her sentence unreasonable:
(1) the nature and circumstances of her offense
as well as her history and characteristics;
(2) promotion of respect for the law and pro-
vision of just punishment; and (3) deterrence
and protection of the public. See § 3553-
(a)(1), (2)(A), (B). The district court, how-
ever, afforded appropriate weight to each of
these factors, did not consider any other, ir-
relevant, factors, and balanced the factors
reasonably.
With respect to the nature and circumstanc-
es of her offense as well as her history and
characteristics, Nikonova points out that
(1) she had only thirteen images; (2) she was
motivated primarily by intellectual rather than
sexual interest; (3) she exhibits no sexually de-
viant traits; (4) child pornography does not
give rise to the same social condemnation in
her country of origin, Russia, as it does in the
United States; and (5) her status as an excep-
tional student who has received numerous
honors and consistently engaged in productive
extracurricular employment from a young age
renders her an atypical defendant. She also ar-
gues that her status as a deportable alien ren-
ders her subject to harsher conditions of con-
finement than she would experience otherwise
and that she faces persecution on her return to
Russia. She contends that these facts indicate
that her sentence is unduly harsh, does not
provide a just punishment, and is unnecessary
to protect the public.
The sentencing record shows that the dis-
trict considered these factors and balanced
them adequately. The court discussed sen-
tencing as a “balance of tragedies” and noted
that, although Nikonova might be an atypical
defendant, her offense falls “within the heart-
land of cases involving possession of child por-
nography.” The court also indicated that it did
not entirely credit Nikonova’s explanation that
she was motivated predominantly by academic
concerns and noted that there was little evi-
dence of working hypotheses or other indicia
of a research paper in progress.
The district court’s disposition is reason-
able, and the judgment of sentence is AF-
FIRMED.
9(...continued)
(rejecting presumption of reasonableness but recog-
nizing that a guideline sentence is more likely than
a non-guideline sentence to be reasonable, and
reviewing for abuse of discretion). Although we
take a different approach to ascertaining whether
the § 3553(a) factors have been considered, we
agree with these circuits that a district court enjoys
broad discretion where there is reason to believe
that it has, in fact, considered the factors.

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