U.S. v. Long, 04-1721.

• Decision Date: 07 October 2005
• Docket Number: No. 04-1721.,04-1721.
• Citation: 425 F.3d 482
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Douglas LONG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

425 F.3d 482

UNITED STATES of America, Plaintiff-Appellee, v. Douglas LONG, Defendant-Appellant.

No. 04-1721.

United States Court of Appeals, Seventh Circuit.

Argued February 22, 2005.

Decided October 7, 2005.

Thomas A. Keith (argued), Office of The United States Attorney, Peoria, IL, for Plaintiff-Appellee.

George F. Taseff, Andrew J. McGowan (argued), Office of The Federal Public Defender, Peoria, IL, for Defendant-Appellant.

Before KANNE, WOOD, and SYKES, Circuit Judges.

WOOD, Circuit Judge.

Caught with tens of thousands of images of child pornography on a personal laptop computer that he kept at work, Douglas Long pleaded guilty to one count of possession of child pornography and one count of criminal forfeiture. See 18 U.S.C. §§ 2252A(a)(5)(B), 2253. The district court sentenced Long to 96 months' imprisonment and criminal forfeiture of specified property. In this appeal, Long challenges the district court's denial of his motion to suppress evidence (an issue he reserved in his plea agreement) and his sentence. In determining Long's sentence, the district court decided to depart upward by four offense levels beyond the applicable guideline range. Even though the court used its discretion in selecting the degree of its departure, Long's guideline range and the extent of that departure were necessarily influenced by the judge's understanding that the guidelines were mandatory. The Supreme Court, however, changed all that in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Long failed to raise a Sixth Amendment or Apprendi argument to his sentence below and therefore his appeal is subject to plain error review. United States v. Paladino, 401 F.3d 471 (7th Cir.2005). Because we cannot determine whether the district court would have imposed the same sentence under an advisory guideline scheme, we order a limited remand in accordance with the procedures outlined in Paladino. In all other respects, we affirm the judgment of the district court.

I

On the night of July 10, 2003, Long received a call from John Brockmeier, the district manager of Washington Inventory Service, where Long worked in Moline, Illinois. Brockmeier asked Long to meet him at Long's office. Long arrived shortly thereafter; he found not only Brockmeier, but also Detectives David Frank and Kerrie Davis of the Peoria Police Department and FBI Agent Greg Catey, waiting for him. The Peoria Police had arranged the meeting with Brockmeier because the previous day a girlfriend of one of Long's employees had given the police two CDs containing child pornography and told the police that the CDs belonged to her boyfriend's boss, whom she identified as Douglas Long. After conducting an examination of the CDs and verifying that they contained child pornography, the police contacted Brockmeier and arranged for the unusual evening meeting.

Once Long arrived at his office, Detectives Frank and Davis opened the conversation (which Long characterizes as an interview) by telling him that somebody had brought something illegal to the Peoria Police Department. They asked Long whether he knew of any employees such as those who had recently been fired who might have wanted to get Long in trouble. During the conversation, the detectives indicated that the illegal items brought to the police were "two CDs with something illegal" on them. At no point, however, did they say that the CDs contained child pornography.

What happened next in the exchange between Long and the detectives is a matter of dispute. Detective Frank claims that before Long gave him permission to search his office and any computers, including his personal laptop, the detective asked him if there was anything illegal in the office and Long replied "to some people it might be." Detective Frank then asked what Long meant, and Long allegedly replied that there were pictures and movies of sex acts with children. Long took the position that the alleged conversation containing the admissions about possessing illegal materials and having files depicting sex acts with children did not take place prior to his giving consent to search (and perhaps never took place). What is undisputed is that Long signed a written consent form that authorized the police to search his office. The consent form allowed the officers to remove "whatever documents, items of property whatsoever, including but not limited to computer hardware, software, and all other external media storage, which they deem pertinent to their investigation and search said items . . . ." After signing the form, Detective Davis searched Long's office and found 10 CDs. At the same time, Detective Frank retrieved his forensic laptop, which was equipped with Encase diagnostic software. (The "Encase Cybercrime Arsenal" package is sold by a company called Guidance Software to the law enforcement community; it is described as a powerful search and diagnostic program. See http://www. guidancesoftware.com.) Using the Encase software, the detectives searched the CDs and found movies and photos of child pornography on them. When Long's laptop was searched at a later date, the detectives found tens of thousands of images and over a hundred movies of child pornography on it as well.

After examining the content of the CDs, the detectives gave Long his Miranda warnings. They then continued their interview with Long. Long admitted that the CDs that the anonymous woman had brought to the police were his and that he had downloaded images of child pornography from the Internet. He explained that he had been collecting child pornography for five to six years. Long also admitted to having inappropriate sexual contact with his daughter.

Once the interview concluded, Long and the agents went to Long's home. The agents did not seize or search his home computer, because they believed Long when he said that he had used only his laptop to download images. While at his residence, Long, in the presence of the agents, admitted to his wife that he possessed child pornography and that he had had inappropriate sexual contact with their daughter. Afterwards, Long was taken to the Peoria Police station.

Long filed a motion to suppress the physical evidence seized from his workplace and his statements, on the ground that the search of his laptop and the CDs exceeded the scope of his consent. The district court denied his motion. The court found that Long "was informed that [the agents] were there in part to investigate because of allegations of wrongdoing against him and also that the allegations included allegations that there was illegal material there." The court found Long's claim that he did not know that the police would search the CDs or use forensic programs to conduct their search of the items to be beside the point, because Long had been informed of the basis of the search, the consent form he signed was very broad, and the form specifically mentioned searching "computer hardware, software, and all other external media storage."

After losing his motion to suppress, Long entered a conditional guilty plea to both counts of the indictment, reserving his right to appeal the denial of his motion to suppress.

On March 18, 2004, the court sentenced Long to 96 months' imprisonment and 10 years of supervised release. His sentence was calculated using the 2003 version of the Sentencing Guidelines. The base level offense for violating 18 U.S.C. § 2252A(a)(5)(B) is 15. The district court increased that level by applying the following enhancements: a two-point increase for possession of material involving prepubescent minors under § 2G2.4(b)(1); a two-point increase for possession of material that resulted from the use of a computer under § 2G2.4(b)(3); a four-point increase for an offense that involved material portraying sadistic or masochistic conduct under § 2G2.4(b)(4); and a five-point increase for an offense that involved more than 600 images under § 2G2.4(b)(5)(D), which led to a level 28. At Long's sentencing hearing, the court heard arguments by defense counsel that the addition of § 2G2.4(b)(5), enacted under the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (PROTECT Act), Pub.L. 108-21, 117 Stat. 650, created a redundancy with section (b)(2) of the same guideline. At the time of sentencing, a defendant such as Long could receive both a two-point upward adjustment for having more than ten images under (b)(2) and additional upward adjustments for the number of images he possessed under (b)(5). The potential double counting was later resolved, as of November 1, 2004, through an amendment to the guidelines which consolidated § 2G2.4 with § 2G2.2 and removed the enhancement for 10 or more images. The court correctly anticipated this change by applying the guideline and then departing downward two levels to negate its effect.

The total offense level that resulted for Long's sentence was 25, after the court deducted three levels for acceptance of responsibility. With a criminal history category I, he faced a guidelines range of 57 to 71 months. The judge decided to depart upward by four offense levels, which resulted in a final range of 87 to 108 months.

The judge structured the upward departure by referring to § 2G2.4(b)(5), which sets forth the following rules for enhancements:

(A) at least 10 images, but fewer than 150, increase by 2 levels; (B) at least 150 images, but fewer than 300, increase by 3 levels; (C) at least 300 images, but fewer than 600, increase by 4 levels; and (D) 600 or more images, increase by 5 levels.

§ 2G2.4(b)(5). The judge explained that a four-level upward departure was appropriate for Long's sentence because "if we take the officer's estimate at 15 to 20,000 [pornographic images] and we reduce it by, let's be generous, 2,000 possible duplicates, which would be double what his suggestion was, we're still talking about 13 to 18,000 different child pornography...