United States v. Chapman, 11–3619.

• Decision Date: 20 September 2012
• Docket Number: No. 11–3619.,11–3619.
• Citation: 694 F.3d 908
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Rondale Lee CHAPMAN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

694 F.3d 908

UNITED STATES of America, Plaintiff–Appellee,

v.Rondale Lee CHAPMAN, Defendant–Appellant.

No. 11–3619.

United States Court of Appeals, Seventh Circuit.

Argued June 12, 2012.

Decided Sept. 20, 2012.

Suzanne M. Garrison (argued), Attorney, Office of the United States Attorney, Criminal Division, Fairview Heights, IL, Thomas E. Leggans, Attorney, Office of the United States Attorney, Benton, IL, for Plaintiff–Appellee.

Judith A. Kuenneke (argued), Attorney, Federal Public Defender's Office, Benton, IL, for Defendant–Appellant.

Before BAUER, KANNE, and WILLIAMS, Circuit Judges.

PER CURIAM.

Rondale Chapman pleaded guilty to producing child pornography, a crime punishable by no less than 15 years in prison. See18 U.S.C. § 2251(a), (e). For several years Chapman, now 46, lured kids as young as 12 to his home with marijuana and alcohol and filmed them, usually through “peepholes,” engaging in sexually explicit conduct. Chapman faced a guidelines range of life imprisonment and was sentenced to a total of 40 years. On appeal he contends that the district court did not fully evaluate his arguments in mitigation, and also failed to adequately explain its choice of sentence. On the surface the first of these contentions seems plausible, but only because Chapman exaggerates the evidence presented at sentencing about his background. When we look beyond his embellishment, it becomes clear that the “mitigating” factors he cites lacked evidentiary foundation or amounted to “stock” arguments that required no response from the judge. For that reason we affirm Chapman's sentence.

I. BACKGROUND

Since at least 2005, Chapman had been plying minors with marijuana and alcohol at his home in southern Illinois. Some teens engaged in sexual activity in the bathroom. Chapman used a camcorder to secretly film them through peepholes or when they left the bathroom door slightly ajar. He also filmed “C.S.” in a bedroom when C.S. was 12 or 13. That victim, the son of a friend, found a nude photo of himself on Chapman's cell phone when he was 16. This discovery, along with a rumor about Chapman secretly filming bathroom occupants, prompted C.S. and another youth to sneak into Chapman's house in January 2011 and search for illicit videos. C.S. located and removed videotapes depicting several boys, including a nephew filmed at age 13, urinating or masturbating in the bathroom. Also on those tapes are the images taken of C.S. in the bedroom three or four years earlier; C.S. could not recall the incidents, but in different sequences Chapman's hand can be seen fondling C.S.'s penis or his voice can be heard coaching C.S. to masturbate for the camera. The tapes were given to the police, and a search warrant executed at Chapman's home turned up others. The additional tapes include multiple clips of teens urinating, masturbating, and engaging in intercourse and oral sex. Among those clips are Chapman exposing his sleeping nephew's penis on a camping trip, and the nephew and a girl engaging in oral sex and intercourse in the bathroom when both were 15 or 16.

A probation officer calculated a guidelines imprisonment range of life based on a total offense level of 43 and Category I criminal history. The presentence report includes three pages about Chapman's personal and family history, his mental and emotional health, and his history of drug use. This information came from Chapman or family members; none is from social-services agencies or mental-health professionals. Except for Chapman's report of suffering previously undisclosed sexual abuse as a child, the probation officer's account is unremarkable:

Rondale Lee Chapman, age 46, was born on September 19, 1965, in Cape Girardeau, Missouri. He was one of two children born to Hershel Chapman and Kathryn (nee Richardson) Starr. He indicated he has been a lifelong resident of Union County, Illinois, with the exception of living in Black Oak, Indiana, for less than a year at approximately five years of age....

The defendant's father ... is approximately age 68.... The defendant's mother ... died in February 2010 after suffering from bone cancer.... [P]rior to his mother's illness, she worked as a restaurant waitress.

The defendant has one full sibling.... The defendant also has four half siblings.... [His maternal half-sister] has visited Chapman since his incarceration in the instant offense.

When asked about his childhood, the defendant advised that his parents divorced when he was four or five years of age. He recalled positive memories of his parents together. Following their divorce, Chapman ... lived with his mother. He stated he spent approximately every other weekend with his father; however, it was sometimes less often.

The defendant indicated he was raised in “the woods in [the Village of] Dongola.” His mother worked frequently to make sure that the defendant and his siblings had the basic necessities. He acknowledged that finances were a struggle for the family. The defendant advised that he was born with a medical condition resulting in poor bone development. He explained that his bones did not grow fast enough for his body's development. He stated he was in a wheelchair for a time and on crutches; however, he “grew out” of the disease at approximately eight years of age.

The defendant described his mother as “number one.” They were very close, and the defendant became emotional when speaking of her death. He advised she was a “tough lady,” explaining that she kept all of her problems to herself. She struggled with severe asthma and was often very sick. Due to her health problems, the defendant advised he had significant responsibilities and household chores.

....

... [T]he defendant's [maternal half-sister] described her brother as “the greatest.” She explained that he was in large part responsible for raising her and other siblings. He was much like a father-figure to her. [She] indicated that the discovery of the instant offense has completely shocked her and other family members. Regardless, she loves her brother and will support him.

The defendant has never been married. He indicated that over the past ten years, he has been sporadically involved in a relationship....

Chapman has fathered one daughter. [She] ... has always resided with her mother....

....

The defendant has never been diagnosed nor treated for any form of mental illness.

Chapman advised that he has been sexually abused by two family members. The first episode occurred between ages six and nine. His uncle sexually abused the defendant repeatedly during that time frame. The defendant did not report the abuse to anyone....

When the defendant was in the sixth and seventh grades, he was again sexually abused by a different uncle. He reported the abuse happened on three or four occasions. Chapman indicated his uncle would take him out to eat and then fondle him.

Chapman stated that he has never received any treatment or counseling to address his history of sexual abuse.

....

Chapman reported that he first consumed alcohol during the summer between his seventh and eighth grade years.... [H]e does not believe he has ever had an alcohol abuse problem.

The defendant admitted he first experimented with marijuana during eighth grade.... He advised that for the past 10 to 15 years, he has been a daily marijuana user....

The only other two drugs reportedly used by the defendant were cocaine and methamphetamine. He first tried cocaine during his sophomore year of high school, and he last used the drug in 1992 or 1993. Chapman first used methamphetamine in 1992 or 1993, and he last used the drug in 2002....

The defendant has never participated in any form of substance abuse treatment.

The probation officer did not view any of this information as warranting a prison sentence below the guidelines range.

In addition to lodging objections to the presentence report (which are not at issue in this appeal), Chapman's lawyer filed a sentencing memorandum proposing a 15–year sentence because of purported mitigating factors. Yet counsel did not submit additional evidence, not even an affidavit from Chapman, to flesh out the probation officer's sketch of the defendant's past. Instead, counsel relied entirely on information in the presentence report as her factual predicate. According to the lawyer (who also represents the defendant on appeal), Chapman was “raised in the woods in Dongola” and “endured an extremely difficult childhood” marked by bone disease, financial struggle, significant household responsibilities and chores attributable to his mother's ill health, and “severe trauma as a child due to sexual abuse by two family members.” “Mr. Chapman's difficult childhood,” counsel added, “likely resulted in his early drug use, as well as his continued drug use as an adult.” “Clearly,” said counsel, Chapman's “difficult childhood ... had a profound, negative and enduring impact,” and if not “for the lack of guidance, sexual abuse by family members, and trauma suffered during the course of his childhood,” Chapman “might not be before” the sentencing court. On the other hand, counsel continued, Chapman had not been a “mass producer or mass distributor” of child porn, and he was remorseful, had a solid work history, zero criminal-history points, and—as an older sex offender with no convictions—a supposedly low risk of recidivism. Moreover, counsel asserted, Chapman's maternal half-sister was supportive. And a sentence greater than 15 years, the lawyer insisted, would cause an “unwarranted sentencing disparity” because judges in four districts outside this circuit had imposed terms of 15 or 16 years in prosecutions for producing child pornography.

The government countered that 60 years would be more appropriate. The prosecutor cited studies showing “a high rate of recidivism among pedophilic sex offenders generally, ranging from 10 percent to 50 percent,” and labeled Chapman “more dangerous than the average consumer of...