## Facts

- Federal agents, in a U.S. Postal Service and ICE sting operation, investigated Jim Bryan Autery for child pornography offenses.
- Agents searched Autery’s computers and found at least 150 child pornography images (exact number disputed).
- Autery was indicted on attempted receipt and possession counts; he later pleaded guilty to one count of possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B).
- The presentence report calculated an offense level of 22 and Criminal History Category I, yielding an advisory Guidelines range of 41–51 months; the parties and court accepted those calculations.
- At sentencing, the government requested 51 months and the defense requested 41 months.
- The district court imposed no imprisonment and sentenced Autery to five years of probation with strict conditions, including treatment, sex-offender registration, restrictions on contact with minors, and limits on computer use and travel.
- The district court justified the variance largely by reference to Autery’s personal history and psychological evaluation, concluding intensive supervision and treatment would address public safety and rehabilitation.
- The government did not object at sentencing but appealed, arguing the sentence was substantively unreasonable given the large variance and sentencing disparity concerns.

## Issues

1. What standard of appellate review applies to substantive reasonableness when the government did not object at sentencing: abuse of discretion or plain error?
2. Whether a sentence of five years’ probation and no imprisonment, far below the 41–51 month advisory range, was substantively unreasonable under 18 U.S.C. § 3553(a).

## Decision

- The Ninth Circuit applied abuse-of-discretion review to the sentence’s substantive reasonableness, notwithstanding the lack of a contemporaneous government objection.
- The court affirmed the sentence, holding the probationary, noncustodial disposition was not substantively unreasonable.
- Judge Tashima dissented, concluding the variance to zero incarceration was unjustified and created unwarranted disparities.

## Legal Principles

- Substantive reasonableness of a sentence is reviewed for abuse of discretion, including when an objection was not made at sentencing.
- A sentencing court must correctly calculate the advisory Guidelines range and then impose a sentence consistent with the 18 U.S.C. § 3553(a) factors.
- Major variances from the Guidelines require stronger justification than minor variances, but “extraordinary circumstances” are not required for non-Guidelines sentences.
- Appellate courts must give substantial deference to a district court’s individualized assessment under § 3553(a) and may not substitute their own sentencing judgment absent an abuse of discretion.
- Consideration of § 3553(a)(6) (avoiding unwarranted disparities) does not make a non-Guidelines sentence per se unreasonable; case-specific factors may justify different treatment.

## Conclusion

The Ninth Circuit upheld a significant downward variance to probation in a child pornography possession case, holding that substantive reasonableness is reviewed for abuse of discretion and that the district court’s § 3553(a)-based, individualized justification and stringent probation conditions supported the noncustodial sentence.


United States v. Autery, 555 F.3d 864 (9th Cir. 2009)