United States v. Jared S. Fogle , 825 F.3d 354 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-3770
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JARED S. FOGLE,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:15-cr-00159 — Tanya Walton Pratt, Judge.
____________________
ARGUED MAY 20, 2016 — DECIDED JUNE 9, 2016
____________________
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
* The Honorable Jorge L. Alonso, United States District Court for the
Northern District of Illinois, sitting by designation.
2 No. 15-3770
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 sen-
tence, we affirm.
I. Background
In 2015, the Indiana State Police Cybercrime Section re-
ceived 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 au-
thorities discovered that Fogle was aware of Taylor’s child
pornography production. Fogle also knew personal infor-
mation 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
No. 15-3770 3
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 ob-
tained child pornography. Some of the victims were as young
as six years old. Fogle never reported Taylor to law enforce-
ment.
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, de-
veloped 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 dis-
tribute 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 ex-
plained 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.
4 No. 15-3770
II. Discussion
A. Claims of Procedural Error
Fogle contends that the district court’s sentence is proce-
durally 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 de-
picting 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: “fail-
ing to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to con-
sider 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 in-
ternal quotation marks omitted).
Fogle first argues that his sentence is based on clearly er-
roneous facts because the district court held him accountable
for Taylor’s production offenses. We disagree. As the govern-
ment notes, the district court repeatedly clarified at sentenc-
ing that Fogle’s conspiracy charge concerned the distribution
No. 15-3770 5
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 dis-
tribution and receipt: Fogle’s base offense level would have
been much higher had the district court treated him as a pro-
ducer, 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 errone-
ously 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 sex-
ual contact with minors, these thoughts and conversations
did not culminate in any chargeable criminal activity warrant-
ing a sentence enhancement.
We cannot accept Fogle’s claim that the district court im-
properly 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 repeat-
edly sought out and traveled to have sex with minors. See
6 No. 15-3770
§ 3553(a)(1). According to Fogle, such evidence forms the ba-
sis only for his conviction for traveling to engage in illicit sex
with a minor, not for the determination that his conduct war-
ranted an upward departure from the guidelines range. To
the contrary, the district court correctly discussed such mat-
ters 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 pro-
tect 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 dis-
trict 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 find-
ing 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 gave Fogle the im-
ages, and then Fogle “‘distributed’ it in an isolated private
showing to one person.” Fogle argues that this conduct “does
not amount to a contention that [he] actively sought, col-
lected, and distributed images of six-year-olds” and thus
should not have served as a basis for enhancing his sentence.
Fogle’s attempt to diminish the conduct underlying his
conviction for distribution is unavailing. The district court
properly considered the fact that Fogle received and distrib-
uted pornography depicting a six year old. It is clear from the
record—and Fogle did not dispute before the district court—
that he received such material, viewed it, and distributed it to
No. 15-3770 7
another individual. He now tries to obscure this admission by
claiming that he did not affirmatively ask for that particular
material. Because there is no question that Fogle willingly re-
ceived and distributed this material, the district court did not
err by considering these specific details in assessing Fogle’s
sentence. United States v. Castaldi, 743 F.3d 589, 598 (7th Cir.
2014) (explaining that the sentencing judge may consider the
“specific details of the individual case” in determining
whether an upward adjustment to the guidelines calculation
is appropriate).
In sum, Fogle’s claims of procedural error lack merit and
the district court’s sentencing decision was procedurally
sound.
B. Claims of Substantive Error
Fogle next asserts that the district court substantively
erred because it did not provide an adequate explanation for
his above-guidelines sentence. We review the substantive rea-
sonableness of a sentence for abuse of discretion. Scott, 555
F.3d at 608. In particular, we consider the district court’s ex-
planation for imposing the sentence. Id. The explanation
“need not be exhaustive but it must be adequate to allow for
meaningful appellate review and to promote the perception
of fair sentencing. If the sentence imposed is outside the
guidelines range, the district court must provide a justifica-
tion that explains and supports the magnitude of the vari-
ance.” Id. (internal citations and quotation marks omitted).
Fogle offers three arguments to show that the district court
abused its discretion by imposing an above-guidelines sen-
tence. First, he asserts that his history and characteristics do
8 No. 15-3770
not support an upward variance, but rather a downward de-
viation. Fogle references his stable upbringing, well-known
role as a spokesman for a national restaurant brand, and lack
of a criminal history as factors that the district court improp-
erly used to enhance, rather than mitigate, his sentence.
Second, he contends—as he did in the course of his proce-
dural claims—that the district court erroneously relied on
conduct that formed the basis for his conviction for traveling
to engage in illicit sex with a minor to support an upward de-
parture from the guidelines range. He argues that because he
already pled guilty to that offense, this conduct cannot also
reasonably support a finding that the guidelines range insuf-
ficiently accounts for the scope of his conduct. Fogle therefore
alleges that the district court engaged in improper double-
counting and failed to provide a justification that supports his
above-guidelines sentence.
Finally, Fogle attacks the district court’s overall reasoning
in imposing his sentence. He characterizes the district court’s
discussion as “puzzling” and claims that the various factors
that the court relied upon cannot reasonably support an en-
hanced sentence. For instance, he alleges that an enhanced
sentence is not warranted because he only engaged in “[o]ne
single act” of distribution. He tries to downplay this conduct
by claiming that it was a mere “technical” violation of the stat-
ute because he only showed the video to “one individual with
whom [he] was then involved with romantically and it oc-
curred in the confines of a locked hotel room.”
Fogle’s arguments regarding substantive error are unper-
suasive in light of the deference “we must give … to the dis-
trict court’s determination that the § 3553(a) factors, taken as
No. 15-3770 9
a whole, justified the extent of the variance” from the guide-
lines range. Scott, 555 F.3d at 610. The district court provided
a thorough explanation for its imposition of an above-guide-
lines sentence, which is all that was required. And contrary to
Fogle’s allegation of double-counting, the district court
properly invoked the § 3553(a) factors and explained why the
aggravated nature and circumstances of Fogle’s offenses war-
ranted a higher sentence for both counts. Specifically, the dis-
trict court noted that Fogle knew that his employee was se-
cretly videotaping minors yet never reported this to law en-
forcement, as well as the fact that Fogle repeatedly acted on
his attraction to minors rather than limiting himself to fanta-
sies. The court also discussed how Fogle’s lack of a difficult
upbringing failed to mitigate the circumstances of his convic-
tion, and how his celebrity status could be viewed as both a
mitigating and aggravating factor.
In light of the district court’s sound exercise of discretion
under the disturbing facts of this case, we uphold the above-
guidelines sentence as substantively reasonable.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
district court.