U.S. v. Johnson, 04-1463.

• Decision Date: 14 October 2005
• Docket Number: No. 04-1463.,04-1463.
• Citation: 427 F.3d 423
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Allan JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

427 F.3d 423

UNITED STATES of America, Plaintiff-Appellee, v. Allan JOHNSON, Defendant-Appellant.

No. 04-1463.

United States Court of Appeals, Seventh Circuit.

Argued March 29, 2005.

Decided October 14, 2005.

Daniel L. Bella, Philip Benson (argued), Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.

Robert D. Truitt (argued), Indiana Federal Community Defenders, Inc., South Bend, IN, for Defendant-Appellant.

Before CUDAHY, WOOD, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

Allan Johnson pleaded guilty to three child pornography charges and now appeals his sentence, which is significantly longer than the guidelines sentencing range because the district court judge exercised his discretion to depart upward from the then-applicable range. Johnson challenges only the district court's decision on upward departure. After United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), his appeal requires us to evaluate the reasonableness of the sentence and also to determine whether a limited remand pursuant to United States v. Paladino, 401 F.3d 471 (7th Cir.2005) is warranted. We conclude that a Paladino remand is unnecessary and affirm Johnson's sentence as reasonable and adequately explained by the district court.

I. Background

Beginning in January 2002, Johnson downloaded child pornography from the internet and also uploaded images already in his possession in exchange for what he received. By the time he was arrested about two months later, Johnson had acquired an astonishing 10,000 to 12,000 computer images of children engaged in sexually explicit conduct, though for purposes of sentencing the government narrowed that number to 4,638 by counting only pictures of children who appeared to be under age twelve. Some files depicted children as young as five or six participating in sexual acts, and among them were 174 images of sadistic sexual acts and 42 of bestiality involving children. In addition to the child pornography images, Johnson also possessed videotapes of children, some depicting children engaged in sexually explicit conduct. He made at least one of these videotapes himself with a hidden camera in his bathroom, where he videotaped a six — or seven-year-old girl taking a shower. Johnson ultimately pleaded guilty without a written agreement to three crimes: possession with intent to sell images of children engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(3)(B); distribution of such images, in violation of § 2252(a)(2); and receipt of such images, also contrary to § 2252(a)(2).

At sentencing, which occurred before our decision in United States v. Booker, 375 F.3d 508 (7th Cir.2004), aff'd, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court, Judge Rudy Lozano, adopted without objection the factual statements in the presentence report. The judge also heard testimony from an FBI agent and a postal inspector concerning the particularly aggravated content of the child pornography images at issue in this case, which the judge characterized as the most shocking he had seen in sixteen years on the bench. The images of sadistic sexual acts included images of children under the age of ten being tied up and forced to have oral, genital, and anal sex with adult males. The images of bestiality depicted young children, sometimes bound, engaging in acts of intercourse and oral sex with dogs.

The FBI agent, who had four years' experience investigating child pornography, testified that only once before had he encountered images of bestiality involving children. Drawing on institutional knowledge, the agent also testified that he spoke with a customs agent and another FBI agent — experienced investigators of this sort of crime — both of whom estimated that less than one percent of child pornography investigations involve bestiality. The postal inspector, who had specialized for nine years in crimes involving the exploitation of children, had seen bestiality before but never involving children under age twelve. Nor had anyone in his office encountered bestiality involving such young children.

Judge Lozano also received testimony from the mother of the child who was videotaped while in the shower. Her testimony and other evidence established that Johnson's live-in girlfriend was a day-care provider, and the child Johnson videotaped was a neighbor child in his girlfriend's care.

Judge Lozano calculated the guidelines sentencing range as follows: applying the version of U.S.S.G. § 2G2.2 in effect at the time Johnson committed the offenses, the judge started with a base offense level of 17. Then, following the probation officer's recommendation, the court added two levels because the child pornography at issue involved minors under age twelve, § 2G2.2(b)(1); five levels because Johnson distributed child pornography, § 2G2.2(b)(2)(B); two levels because Johnson used a computer, § 2G2.2(b)(5); and four more because of the sadistic images involving children, § 2G2.2(b)(3) (renumbered as § 2G2.2(b)(4) effective November 1, 2004). These adjustments, after a decrease of three levels for acceptance of responsibility, § 3E1.1, yielded an offense level of 27, which, when combined with Johnson's criminal history category of I, resulted in a guidelines sentencing range of 70 to 87 months' imprisonment.

But Judge Lozano nearly tripled the high end of the guidelines range, calculating a "departure range" of 210 to 262 months and ultimately imposing a total sentence of 236 months' imprisonment — 180 months on each count to be served consecutively to the extent necessary to arrive at the total term of 236 months. The judge gave three basic reasons for imposing this sentence above the guidelines range. First, the judge added the equivalent of four levels to account for Johnson's possession of 42 images of children engaged in bestiality. The judge concluded that bestiality, especially involving children so young, constituted a substantial aggravating factor not adequately considered by the Sentencing Commission.

Second, the judge added another five levels (bringing the effective offense level to 36) to account for the number of images in Johnson's possession: 4,638. Judge Lozano explained that he was taking into consideration a later-enacted amendment to § 2G2.2 under which Johnson would have received an equivalent adjustment for possessing 600 or more images. See U.S.S.G. § 2G2.2(b)(7)(D); id. app. C, amend. 649 (effective Apr. 30, 2003). Since Johnson stood convicted of possessing more than seven times as many images, the court reasoned that departing upward by reference to this amendment was appropriate.

Third, the court concluded that Johnson's criminal history category of I did not accurately reflect his past criminal conduct nor the likelihood that he would commit other crimes in the future. By his own admission, Johnson committed the offense of voyeurism under IND. CODE § 35-45-4-5 (a Class D felony under Indiana law) by videotaping the child in the shower, even though he was never charged with that crime. Because this was a crime punishable by more than a year and a month in prison, the judge deemed it appropriate to elevate Johnson's criminal history category from I to II. See U.S.S.G. § 4A1.3.

Beyond articulating these three basic grounds for exceeding the guidelines range, Judge Lozano also commented at length on the additional factors that influenced his sentencing decision. He repeatedly addressed the particularly aggravated content of the images at issue in this case — especially those depicting bestiality — which he characterized as "vile" and "completely appalling." He noted Johnson's abuse of the baby-sitting situation in connection with the videotape incident, reasoning that this made Johnson more likely to commit crimes involving child pornography again and perhaps to progress to even more serious sex crimes against children. The judge explained that he settled on 236 months because he thought a sentence of that length was necessary to send a strong message of deterrence and permit enough time for Johnson's rehabilitation. The court took into account Johnson's age and health, his degree of remorse (which the judge found lacking), his propensity toward recidivism, and "the Court's duty to society." Judge Lozano emphasized that he "did not come to this decision lightly, nor was it an easy issue to decide." The judge explained: "I have considered all of the facts in this case, Mr. Johnson, and I have considered what would be a fair sentence. I have considered very strongly what, hopefully, would send a message to other individuals who are thinking about these types of crimes, that this is off limits. Our children are off limits, and this Court will protect them at all costs."

II. Discussion

On appeal Johnson argues that the district court erred by making "three departures" based on the images of bestiality, the overall number of images, and the videotape of the showering child. He also argues that the judge violated his Sixth Amendment rights by sentencing him under the formerly mandatory guidelines regime. See Booker, 125 S.Ct. at 756.

Johnson's framing of the issue as one about "departures" has been rendered obsolete by our recent decisions applying Booker. It is now clear that after Booker what is at stake is the reasonableness of the sentence, not the correctness of the "departures" as measured against pre-Booker decisions that cabined the discretion of sentencing courts to depart from guidelines that were then mandatory. United States v. Castro-Juarez, 425 F.3d 430, 432 (7th Cir.2005) ("the question . . . is ultimately the reasonableness of the sentence the district court imposed, not the court's application of a guideline authorizing an upward departure"). Now, instead of employing the pre-Booker terminology of departures, we have moved toward characterizing sentences as either fitting within the advisory...