United States v. McLaughlin

• Decision Date: 29 July 2014
• Docket Number: No. 12–3255.,12–3255.
• Citation: 760 F.3d 699
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. John McLAUGHLIN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

760 F.3d 699

UNITED STATES of America, Plaintiff–Appellee,

v.John McLAUGHLIN, Defendant–Appellant.

No. 12–3255.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 16, 2013.

Decided July 29, 2014.

Yasmin Best, Chicago, IL, for Plaintiff–Appellee.

Mark Howard Allenbaugh, Costa Mesa, CA, for Defendant–Appellant.

Before KANNE, ROVNER, and WILLIAMS, Circuit Judges.

ROVNER, Circuit Judge.

John McLaughlin pled guilty to one count of transporting child pornography, in violation of 18 U.S.C. § 2252A(a)(1). He was sentenced to 130 months' imprisonment, a fine of $50,000, and 20 years of supervised release. He challenges his sentence in several respects. We affirm.

I.

Sometime prior to June 2009, John McLaughlin began visiting an internet chat room where participants viewed and shared child pornography. Through his activity on the internet, McLaughlin accumulated a large collection of child pornography that included photographs of adults sexually abusing pubescent and prepubescent minors, children engaged in sexual acts with animals, and children engaged in sexual acts with other children. A December 2009 search warrant of McLaughlin's home resulted in a seizure of his computer, an external hard drive and several dozen DVDs, collectively containing more than 150 videos and more than 500 photographs of child pornography.

McLaughlin was charged with four counts of transporting child pornography, in violation of 18 U.S.C. § 2252A(a)(1); and one count of possessing child pornography, in violation of 18 U.S.C. § 2252A(5)(B). The government also sought the forfeiture of McLaughlin's computer tower, external hard drive and DVDs, pursuant to 18 U.S.C. § 2253. McLaughlin pled guilty to one count of transporting child pornography and agreed to the forfeiture. In the Presentence Investigation Report (“PSR”), a probation officer determined that the guidelines range was 151 to 188 months' imprisonment, based on a total offense level of 34 and a criminal history category of I. The PSR set forth a base offense level of 22, pursuant to section 2G2.2(a)(2) of the guidelines. To that base offense level, the PSR added: (1) two levels under section 2G2.2(b)(2) because the material involved prepubescent minors and minors who had not yet attained the age of twelve years; (2) two levels under section 2G2.2(b)(3)(F) because the offense involved distribution of the material; (3) four levels because the “offense involved material that portrays sadistic or masochistic conduct or other depictions of violence,” pursuant to section 2G2.2(b)(4); (4) two levels under section 2G2.2(b)(6) for the use of a computer for the transmission of the material; and (5) five levels under section 2G2.2(b)(7)(D), because the offense involved more than 600 images. The PSR also afforded a three-level reduction for acceptance of responsibility under section 3E1.1.

Finally, the PSR contained an extensive analysis of McLaughlin's finances, calculating a net worth of more than $135,000 in cash, annuities and retirement accounts.¹ The PSR concluded that McLaughlin possessed “the financial ability to make an immediate payment towards restitution and/or a fine.” R. 64, at 18. The PSR also noted that the statutory maximum for a fine was $250,000 pursuant to 18 U.S.C. § 3571, and that the guidelines range was $17,500 to $175,000. The PSR indicated that the court “shall impose a fine in all cases, except where the defendant establishes that he is unable to pay and is not likely to become able to pay any fine,” citing guidelines section 5E1.2(a). The PSR listed some of the factors that the court should consider in determining the amount of a fine, including the cost of confinement, probation and supervised release. SeeU.S.S.G. § 5E1.2(d). The PSR included the most recent monthly costs for imprisonment, community confinement and supervision as set forth by the Administrative Office of the United States Courts. R. 64, at 20.

In the district court, McLaughlin objected to the four-level enhancement under section 2G2.2(b)(4) for material that portrays sadistic or masochistic conduct or other depictions of violence. He also contended that the guidelines for child pornography offenses are generally arbitrary and capricious, that many courts have recognized that section 2G2.2 is flawed, and that these courts often sentence defendants significantly below the guidelines range because of these flaws. He maintained that he would be unusually susceptible to abuse by other inmates because of the nature of his conviction, and he urged the court to adjust his sentence downward on that basis as well. He argued that the statutory minimum of sixty months was adequate to address the seriousness of his offense as a viewer rather than a producer of child pornography. He opposed an award of restitution for the identified victims of the crime, contending that there was no evidence that he had proximately caused harm to the individuals portrayed in the pornography he possessed. But he was silent on the issue of a fine. Finally, at his sentencing hearing, he also objected to the government's reliance on the “market thesis” as lacking any basis in fact. He described the market thesis as the theory that mere consumers of child pornography create a demand for the production of child pornography. He argued that there was no empirical evidence to support this theory and that producers of child pornography committed very different crimes than mere consumers. Producers, he maintained, were not influenced by consumers to make more child pornography but would commit their crimes of abusing children whether or not others wished to purchase or view child pornography.

The district court adopted the PSR, and agreed that the total offense level was 34, resulting in a guidelines range of 151 to 188 months' imprisonment. In fashioning a sentence, the court differentiated between producers of child pornography and consumers such as the defendant, acknowledging the great pain caused to the victims by producers. The court explained the factors that it considered in determining the sentence and announced a below-guidelines sentence of 130 months' imprisonment. After noting that the government had not sought restitution, the court found that “the defendant has the funds and sufficient ability to pay a fine, and the Court will impose a fine of $50,000 in this case, due immediately.” R. 61, at 37. McLaughlin appeals.

II.

On appeal, McLaughlin objects to the four-level enhancement under section 2G2.2(b)(4) for “material that portrays sadistic or masochistic conduct or other depictions of violence.” He also complains that his sentence was based on speculation and unfounded allegations, that the district court failed to address his argument regarding his unusual susceptibility to abuse in prison, and that the court failed to articulate its reasons for imposing a $50,000 fine. He also challenges the substantive reasonableness of his sentence on two grounds. Our review of sentencing decisions is limited to whether they are reasonable, applying the abuse of discretion standard. Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Anobah, 734 F.3d 733, 736 (7th Cir.2013); United States v. Aslan, 644 F.3d 526, 531 (7th Cir.2011). We first must ensure that the district court committed no significant procedural error. Gall, 552 U.S. at 51, 128 S.Ct. 586. Procedural errors include, among other things, incorrectly calculating the guidelines range, or failing to explain adequately the chosen sentence. Gall, 552 U.S. at 51, 128 S.Ct. 586; Anobah, 734 F.3d at 736. We review the district court's interpretation of the sentencing guidelines de novo. Aslan, 644 F.3d at 531; United States v. Veazey, 491 F.3d 700, 706 (7th Cir.2007). We review the district court's findings of fact for clear error. United States v. Knox, 624 F.3d 865, 870 (7th Cir.2010). Sentences that are within the properly calculated guidelines range are entitled to a rebuttable presumption of reasonableness. Rita v. United States, 551 U.S. 338, 341–49, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); Anobah, 734 F.3d at 736; United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005).

A.

We begin with the four-level enhancement for material portraying sadistic or masochistic conduct or other depictions of violence. McLaughlin contends that the district court's application of section 2G2.2(b)(4) amounted to double-counting because that enhancement was based solely on the age of the victims, which had already been taken into account by section 2G2.2(b)(2). He acknowledges that sexual penetration of a prepubescent child by an adult qualifies as violence under section 2G2.2(b)(4) but contends that only one of the enhancements could be applied because both subsections address the same harm. His objection fails on multiple levels.

First, as McLaughlin concedes, images portraying sexual penetration of a minor by an adult would alone qualify for the section 2G2.2(b)(4) enhancement. See United States v. Myers, 355 F.3d 1040, 1043–44 (7th Cir.2004) (holding that sexual penetration of a minor by an adult would necessarily cause pain and therefore qualify for the section 2G2.2(b)(4) sadism and violence enhancement, and collecting cases from other circuits). Images fitting that description were among those found in the materials seized from McLaughlin. Second, “double counting is generally permissible unless the text of the guidelines expressly prohibits it.” United States v. Vizcarra, 668 F.3d 516, 519 (7th Cir.2012). There is no such prohibition in section 2G2.2. And we have repeatedly upheld sentences that contained enhancements under both 2G2.2(b)(2) and 2G2.2(b)(4), albeit in cases where the defendant had not specifically raised a double-counting objection. See United States v. Meschino, 643 F.3d 1025, 1028 (7th Cir.2011); United States v. Maulding, 627 F.3d 285, 286 (7th Cir.2010); United States v. Shrake, 515 F.3d 743,...