United States of America v. Maximus Prophet, also known as MARK L. FERRARI MAXIMUS PROPHET

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-2918
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UNITED STATES OF AMERICA
v.
MAXIMUS PROPHET,
also known as MARK L. FERRARI
MAXIMUS PROPHET,
Appellant
___________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 3-07-cr-00025-001)
District Judge: The Honorable Kim R. Gibson
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Submitted Under Third Circuit LAR 34.1(a)
May 21, 2009
BEFORE: FUENTES, JORDAN, and NYGAARD, Circuit Judges.
(Filed: June 25, 2009)
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OPINION OF THE COURT
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NYGAARD, Circuit Judge.

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Appellant, Maximus Prophet, pleaded guilty to twelve counts of child
pornography. Count One charged him with possession of visual depictions of minors
engaged in sexually explicit conduct, a violation of 18 U.S.C. § 2252(a)(4)(B)(A), and
Counts Two through Twelve charged him with receipt of such visual depictions in
violation of 18 U.S.C. § 2252(a)(2). Prophet was sentenced to 120 months at Count One
and 168 months imprisonment at Counts Two through Twelve, all terms running
concurrently. Prophet appeals, challenging the reasonableness of his sentence.
I.
We review for an abuse of discretion. This is a highly deferential standard and we
may not reverse the District Court merely because we disagree with a sentence. If a
sentence falls within a broad range of possible sentences that can be considered
reasonable in light of the § 3553(a) factors, we must affirm. When we review a district
court’s sentence for “reasonableness,” our touchstone is whether the record as a whole
reflects rational and meaningful consideration of the factors enumerated in 18 U.S.C. §
3553(a).
Here, the District Court adequately considered the factors and its colloquy was
reasonable. The District Court viewed Prophet’s participation in a peer-to-peer network
as a form of distribution. The District Court rejected the Government’s call for an upward
departure and instead found that the within-Guidelines sentence was appropriate so as to
reflect the seriousness of the crimes — which, we must note, involved not only hundreds

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of images of child pornography, but also videos of sado-masochistic sexual acts involving
young children.
As a matter of law, the District Judge was obligated to consider the Guidelines
range, which he did, and to consider whether that range was appropriate to this particular
defendant, which he also did. Inasmuch as the sentence was within the Guidelines range,
we would be hard-pressed to hold that it was not within a range of reasonable sentences.
Further, the District Court found that Prophet’s medical condition did not render him
infirm or warrant a downward departure or variance.
II.
Prophet also argues that the District Court improperly relied on the child
pornography Guidelines, which he maintains were rendered unreliable by the Supreme
Court’s recent opinion in Kimbrough v. United States, 128 S.Ct. 558 (2007). Prophet
argues that the child pornography Guidelines are based on statutory mandatory minimums
and not empirical support or national experience.
There is increasing debate whether the child pornography Guidelines, especially
Guideline 2G2.2, provide a sound basis for sentencing. The argument is that because
these Guidelines — like those at issue in Kimbrough — were not based on the Sentencing
Commission’s nationwide empirical study of criminal sentencing. It has been noted that
“[m]uch like policymaking in the area of drug trafficking, Congress has used a mix of
mandatory minimum penalty increases and directives to the Commission to change

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sentencing policy for sex offenses.” United States v. Huffstatler, 561 F.3d 694, 696-97
(7th Cir. 2009) (citing U.S. Sentencing Comm'n, Fifteen Years of Guidelines Sentencing:
An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals
of Sentencing Reform 72-73 (November 2004), available at http:// www. ussc. gov/ 15_
year/ 15_ year_ study_ full. pdf.). Nevertheless, we need not reach this issue here.
In Kimbrough, the Supreme Court held that, because the crack-cocaine guidelines
were predominantly based on statutory minimum sentences and not empirical data or
national experience, “it would not be an abuse of discretion for a district court to
conclude when sentencing a particular defendant that the crack/powder disparity yields a
sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes, even in a mine-run
case.” Kimbrough, 128 S.Ct. at 575. However, even if it were true that district courts,
based on the reasoning of Kimbrough, may impose below-guideline sentences for child
pornography offenses solely based upon policy disagreements with those guidelines, it
does not follow that they must do so. As the Seventh Circuit reasoned when confronted
with a similar argument:
Despite Kimbrough, the crack guidelines, to which [defendant] so
energetically analogizes those for child-exploitation, remain valid. And
judges are not required to disagree with the crack guidelines; a
within-guidelines sentence may be reasonable. The child-exploitation
guidelines are no different: while district courts perhaps have the freedom
to sentence below the child-pornography guidelines based on disagreement
with the guidelines, they are certainly not required to do so.

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Huffstatler, 561 F.3d at 697-98. We decline Prophet’s invitation to invalidate an entire
section of the Sentencing Guidelines. Prophet has offered no evidence suggesting that his
below-guidelines sentence was arbitrary or based upon impermissible factors, or that the
district judge failed to consider pertinent § 3553(a) factors or gave an unreasonable
amount of weight to any pertinent factor. As we have stated, a disagreement with the
District Court’s sentence or the policy behind it does not render its sentence unreasonable.
Finally, the District Court here did not base its sentences on policy disagreements with
child pornography guidelines. Therefore, we hold that Prophet’s sentence is substantively
reasonable and will affirm the sentencing order.

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