U.S. v. Rogers

• Decision Date: 13 September 2005
• Docket Number: No. 04-2563.,04-2563.
• Citation: 423 F.3d 823
• Parties: UNITED STATES of America, Plaintiff—Appellee, v. Jack Wayne ROGERS, Defendant—Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

423 F.3d 823

UNITED STATES of America, Plaintiff—Appellee, v. Jack Wayne ROGERS, Defendant—Appellant.

No. 04-2563.

United States Court of Appeals, Eighth Circuit.

Submitted: April 13, 2005.

Filed: September 13, 2005.

COPYRIGHT MATERIAL OMITTED

Lawrence E. Miller, U.S. Attorney's Office, Jefferson City, MO, for Plaintiff-Appellee. Jeremiah J. Morgan, Bryan & Cave, Kansas City, MO, for Defendant-Appellant.

Before LOKEN, Chief Judge, FAGG and BYE, Circuit Judges.

LOKEN, Chief Judge.

Jack Wayne Rogers pleaded guilty to two counts of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) & (b)(2); five counts of distribution of child pornography in violation of 18 U.S.C. § 2252(a)(1) & (b)(1); and three counts of distribution of obscene materials in violation of 18 U.S.C. § 1462. At a sentencing hearing held prior to the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the district court¹ determined that the Guidelines sentencing range was 57 to 71 months in prison. The court then departed upward and sentenced Rogers to 360 months in prison. The court's statement of reasons cited a victim's physical injury, see U.S.S.G. § 5K2.2, p.s.; Rogers's extreme conduct, see U.S.S.G. § 5K2.8, p.s.; and the large number of visual depictions, see U.S.S.G. § 2G2.4 (2002). Rogers appeals the severe upward departure. We affirm.

I.

The charges against Rogers resulted from warrant searches of his home and business. Investigators seized computers and data storage devices on which they found at least 860 images of child pornography that included sexually explicit photographs of prepubescent children. These images were the basis for the two counts of possessing child pornography. Forensic analysis revealed that Rogers had distributed numerous e-mail attachments showing male children engaged in sexually explicit conduct, including photographs of children chained and bound by ropes. These images were the basis for the five counts of child pornography distribution. Investigators also discovered numerous photographs of Rogers posing with severed male genitals, wearing them on his head, placing them in his mouth and apparently chewing them, placing them in a coffee cup or on a plate, and attaching severed penises together. Evidence that Rogers e-mailed some of these images to others was the basis for the three counts of distributing obscene materials. The evidence also included Internet "chat logs" in which Rogers discussed methods of torturing and mutilating children and bragged that he once abducted, raped, tortured, and murdered a blonde-haired boy from Skidmore, Missouri. In Rogers's home, office, and van, investigators found surgical equipment, items used in bondage and torture, and books dealing with these subjects.

After Rogers pleaded guilty to all counts, the Presentence Investigation Report (PSR) recounted the above-summarized facts underlying the offense conduct. Applying the Guidelines effective November 1, 2002, the PSR assigned Rogers a total offense level of 24, a criminal history category of II based on a previous federal child pornography conviction, and a recommended mandatory Guidelines sentencing range of 57 to 71 months. The PSR reported that charges were pending in state court accusing Rogers, who has no medical license, of surgically removing the male genitalia of a person who wanted a sex change in a motel room while an assistant photographed the "nullification" procedure, keeping the severed genitalia, and telling the assistant he ate them. The PSR concluded by suggesting that the court "may wish to consider an upward departure" pursuant to U.S.S.G. §§ 5K2.0, 5K2.8, and 2G2.4.

The government moved for an upward departure to 360 months, citing the physical injury to the person who received the motel room nullification, § 5K2.2; the heinous and brutal nature of the procedure, § 5K2.8; and Rogers's large collection of child pornography images, § 2G2.4.² Rogers opposed the motion, arguing that § 2G2.4 did not authorize a departure above the two-level increase for ten or more images mandated by § 2G2.4(b)(2), and that the extreme conduct and physical injury cited by the government did not relate to his child pornography possession and distribution offenses.

At sentencing, the person who received the motel room nullification testified that she paid Rogers $750 for the four-hour procedure in which he removed her penis, scrotum, and testicles using only local anesthetics. Rogers told her he had performed "over a hundred" castrations and penectomies. Rogers placed her genitals in a plastic bag in the refrigerator. His assistant took photographs of the procedure which were subsequently posted on the Internet. The victim bled profusely during the operation and for six days thereafter, when she finally admitted herself to an emergency room. The emergency room urologist who treated her testified that she would have died from the bleeding if she had not come to the hospital that night. An acquaintance of Rogers testified that he had been present when Rogers performed several nullifications and had even photographed one such operation at Rogers's request. He further testified that Rogers said he assumed "ownership" of the severed genitals and "physically consumed" them, a claim consistent with the obscene photographs.

At the conclusion of the testimony the district court granted the government's motion to depart upward to 360 months, stating:

I've heard the evidence here and the motion for upward departure. And I am going to depart upward. And based on the number of images, the extreme nature of the conduct, I can't imagine any more extreme conduct. And, of course then it was a serious injury that — it's a wonder she didn't die from it. Just a wonder.

The court imposed the statutory maximum of ten years for counts 1 and 2 (possession of child pornography), a consecutive sentence of twenty years for counts 3-7 (distribution of child pornography), and a concurrent sentence of five years, the statutory maximum, for counts 8-10 (distribution of obscene materials).

II.

Rogers first argues that the district court violated his Sixth Amendment rights by departing upward on the basis of facts not found by a jury or admitted in his plea agreement. This argument is based on the subsequent decision in Blakely, whose impact on the federal Sentencing Guidelines was later defined in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In response, the government argues that Rogers waived this claim in the plea agreement when he agreed "that his sentence will be determined and imposed pursuant to those Sentencing Guidelines" and that provisions increasing or decreasing his sentence "will be determined by the Court." Rogers replies that he did not waive the right to challenge an upward departure, which is certainly true. But "[w]hen a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant ... consents to judicial factfinding." Blakely, 124 S.Ct. at 2541. Thus, Rogers waived the claimed Sixth Amendment rights in the plea agreement.

There remains an issue that Rogers did not raise — whether the district court committed reversible error when it sentenced him under mandatory Guidelines that are now advisory under Booker. Arguably, Rogers waived this issue in the plea agreement when he agreed to "waive the right to appeal ... any sentencing issue ... which ha[s] been addressed and agreed upon in this Plea Agreement." Assuming the issue was not waived, it is a forfeited claim that we review for plain error. Nothing in the record establishes "a reasonable probability ... that but for the [Booker] error [Rogers] would have received a more favorable sentence." United States v. Pirani, 406 F.3d 543, 552 (8th Cir.2005) (en banc). Thus, there was no plain error. As the Seventh Circuit said in affirming a substantial upward departure imposed on a child pornography offender, "[a] judge predisposed to exercising his discretion adversely to the defendant, knowing that Booker affords yet more latitude, might impose a sentence higher still; knowledge that freedom has increased would not induce the judge to reduce the sentence." United States v. Cunningham, 405 F.3d 497, 505 (7th Cir.2005) (quotation omitted).

III.

Rogers next argues that the district court erred by departing upward without adequately stating, in open court and in the written judgment, "the specific reason for the imposition of a sentence" outside the Guidelines sentencing range. 18 U.S.C. § 3553(c)(2). We disagree.

The government's departure motion relied on specific Guideline provisions — §§ 2G2.4, 4A1.3, 5K2.2, and 5K2.8. Rogers's pre-hearing memorandum responded on each issue. The government presented testimony at the sentencing hearing relating to the paragraphs in the PSR describing the motel room nullification procedure, the only relevant portion of the PSR to which Rogers objected on the ground that "these paragraphs are not supported by any evidence." At the end of the hearing, the district court stated that it was departing because of the numerous images, extreme conduct, and physical injury; by not including Rogers's allegedly inadequate criminal history category as an additional ground, the court rejected the government's motion for an upward departure under § 4A1.3. Thus, the court stated "specific reasons," reasons specifically addressed in the Guidelines, in the parties' pre-hearing memoranda, and at the hearing. The court's written statement of reasons was consistent with its statement in open court.

In these circumstances, we agree with the government that the court's statements, while cryptic, provide us with specific reasons for the departure that are sufficient for appellate review. See United States v. Aguilar-Lopez, 329 F.3d 960, 963 (8th Cir.2003). This is not a case like United States v. Fuentes, 341...