United States v. Fogle

• Decision Date: 09 June 2016
• Docket Number: No. 15-3770,15-3770
• Citation: 825 F.3d 354
• Parties: United States of America, Plaintiff–Appellee, v. Jared S. Fogle, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

825 F.3d 354

United States of America, Plaintiff–Appellee

v.Jared S. Fogle, Defendant–Appellant.

No. 15-3770

United States Court of Appeals, Seventh Circuit.

Argued May 20, 2016

Decided June 9, 2016

Steven D. DeBrota, Bob Wood, Attorneys, Office of the United States Attorney, Indianapolis, IN, for Plaintiff–Appellee.

Ronald Edward Elberger, Attorney, Bose McKinney & Evans, LLP, Indianapolis, IN, for Defendant–Appellant.

Before Flaum and Manion, Circuit Judges, and Alonso, District Judge.^*

Flaum

, Circuit Judge.

In August 2015, Jared Fogle pled guilty to two counts of conviction for offenses involving the distribution and receipt of child pornography, as well as travel to engage in illicit sexual conduct with a minor. The district court imposed an above-guidelines sentence of 188 months in prison on each count, to be served concurrently. Fogle appeals his sentence, alleging that the district court committed procedural and substantive errors. Because the district court did not err in imposing an above-guidelines sentence, we affirm.

I. Background

In 2015, the Indiana State Police Cybercrime Section received a tip that Fogle's close friend and employee, Russell Taylor, had sent text messages expressing a sexual interest in children. Subsequently a search warrant was obtained for Taylor's home and electronic devices. It was discovered that, between March 2011 and April 2015, Taylor had produced child pornography using secret cameras he had set up in his residence.

The Taylor investigation led law enforcement officials to Fogle. Taylor worked for Fogle's charitable foundation and the two men met and traveled together frequently. The authorities discovered that Fogle was aware of Taylor's child pornography production. Fogle also knew personal information about the children depicted in the pornography. In some instances, Fogle had met the child victims at social events with Taylor and his family.

Law enforcement officials then executed a warrant to search Fogle's home and devices. They found two images of child pornography on Fogle's phone that Fogle had received from Taylor. Additionally, data analysis revealed that Taylor had often given Fogle his laptop computer on trips so that Fogle could view the child pornography contained therein. The investigation also showed that Taylor had given Fogle a thumb drive containing child pornography. Altogether, Fogle had received images and videos from Taylor's homemade collection as well as Taylor's collection of commercially obtained child pornography. Some of the victims were as young as six years old. Fogle never reported Taylor to law enforcement.

The investigation also connected Fogle to two victims of child prostitution. Fogle had engaged in commercial sex acts with two minors, ages sixteen and seventeen, in New York City. Moreover, text messages and emails revealed that Fogle had repeatedly found adult escorts through the internet, developed relationships with them, and offered them finder's fees to provide him with access to minors for commercial sex. He did this in various cities, including Richmond, Virginia; Kansas City, Missouri; and Las Vegas, Nevada.

On August 19, 2015, Fogle was arrested. He was charged with distributing and receiving, as well as conspiring to distribute and receive, child pornography, in violation of 18 U.S.C. § 2252(a)(2)

, and traveling and attempting to travel to engage in illicit sexual conduct with a minor, in violation of § 2423(b) and (e). Fogle waived an indictment by a grand jury and pled guilty. In exchange, the government agreed not to recommend a sentence greater than 151 months in prison. Fogle's advisory guidelines range was 135 to 168 months.

The district court sentenced Fogle on November 19, 2015. Fogle requested a sentence of 60 months in prison, while the government recommended 151 months. The district court explained that Fogle's conduct warranted an above-guidelines sentence and imposed 188 months in prison for each count, to be served concurrently. This appeal followed.

II. Discussion

A. Claims of Procedural Error

Fogle contends that the district court's sentence is procedurally flawed in three respects. First, he argues that the court was unduly influenced by his relationship with Taylor, who produced the child pornography. Second, he claims that the court based its sentence on his fantasies rather than his actual conduct. Third, he says that the court erroneously based the sentence on his acquisition and viewing of pornography depicting children as young as six years old.

We review de novo the procedural reasonableness of a sentence. See United States v. Baker , 755 F.3d 515, 522 (7th Cir. 2014)

. “To avoid procedural error, sentencing judges must correctly calculate the guidelines range, evaluate the factors in 18 U.S.C. § 3553(a), and rely on properly supported facts.” Id. (citation and internal quotation marks omitted). Examples of procedural error that may warrant reversal include: “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [section] 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range.” United States v. Scott , 555 F.3d 605, 608 (7th Cir. 2009) (alteration in original) (citation and internal quotation marks omitted).

Fogle first argues that his sentence is based on clearly erroneous facts because the district court held him accountable for Taylor's production offenses. We disagree. As the government notes, the district court repeatedly clarified at sentencing that Fogle's conspiracy charge concerned the distribution and receipt of child pornography, not production. The court did inquire about Taylor's production of child pornography, but, taken in context, these questions were highly relevant to the examination of the nature and circumstances of Fogle's conduct. § 3553(a)(1)

. There is no evidence in the record that the district court was confused about the facts or determined to punish Fogle for production, as Fogle alleges. Moreover, it is evident that the district court sentenced Fogle only for distribution and receipt: Fogle's base offense level would have been much higher had the district court treated him as a producer, and would have resulted in a greater sentence than that actually imposed. Compare U.S.S.G. § 2G2.1(a) (base offense level of 32 for production), with § 2G2.2(a)(2) (base offense level of 22 for distribution and receipt).

Fogle's second argument is that his sentence is erroneously based on fantasies and acts that he did not carry out. Specifically, Fogle asserts that even though he fantasized about and discussed with third parties his desire to have sexual contact with minors, these thoughts and conversations did not culminate in any chargeable criminal activity warranting a sentence enhancement.

We cannot accept Fogle's claim that the district court improperly enhanced his sentence based on “things he didn't do or for fantasies he may have had.” Rather, the district court properly discussed Fogle's persistent attempts to find minors to have sex with in exchange for money as part of the § 3553(a)

analysis. The district court also appropriately considered the perverse nature and circumstances of the offenses, including Fogle's “obsess[ion] with child pornography and having sex with minors,” alongside ample evidence that Fogle repeatedly sought out and traveled to have sex with minors. See § 3553(a)(1)

. According to Fogle, such evidence forms the basis only for his conviction for traveling to engage in illicit sex with a minor, not for the determination that his conduct warranted an upward departure from the guidelines range. To the contrary, the district court correctly discussed such matters in evaluating the § 3553(a) factors and imposing an above-guidelines sentence. See § 3553(a)(2)(b), (c) (instructing the court to consider the need for the sentence imposed “to afford adequate deterrence to criminal conduct [and] to protect the public from further crimes of the defendant”); United States v. Bradley , 675 F.3d 1021, 1025 (7th Cir. 2012) (explaining that the district court may use the § 3553(a) factors to support an above-guidelines sentence).

Fogle's third and final procedural argument is that the district court erroneously based its sentence on his acquisition of child pornography through the internet, including images of victims as young as six years old. Fogle alleges that this finding is based on incorrect facts because he did not affirmatively collect the pornography from the internet or solicit it from Taylor. Instead, Fogle explains that Taylor...