United States v. Daniel Jines , 597 F. App'x 886 ( 2015 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 17, 2014
Decided January 29, 2015
Before
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 14-1861
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Indiana,
Indianapolis Division.
v.
No. 1:13CR00057-001
DANIEL A. JINES,
Defendant-Appellant. William T. Lawrence,
Judge.
ORDER
Daniel Jines pleaded guilty to sexually exploiting a minor (his daughter), 18
U.S.C. § 2251(a), and receiving and possessing child pornography, id. § 2252(a)(2),
(a)(4)(B). At sentencing Jines asked the court to impose a sentence that would not be a
de facto life sentence. The district court declined to use Jines’s life expectancy as a
sentencing cap and sentenced him to 680 months’ imprisonment. On appeal Jines
contends that the court ignored his primary argument in mitigation about avoiding an
effective life sentence and imposed a substantively unreasonable sentence. Because
Jines’s sentence is neither procedurally nor substantively unreasonable, we affirm.
No. 14-1861 Page 2
Jines was linked by the Hamilton County Metro Child Exploitation Task Force to
an IP address that had downloaded child pornography. Authorities visited Jines at his
home, and he admitted to downloading child pornography and showed the officers a
folder on his computer that contained 400 videos of child pornography. Some of those
videos featured very young children—ranging in age from two months to two years—
engaged in bondage and bestiality.
After Jines was arrested, his then 15-year-old daughter told authorities that her
father had forced her to engage in sexual acts with him when she was between 8 and 13
years old. The assaults typically involved Jines touching her genitals and other body
parts with his hands and penis and performing oral sex on her. Jines would threaten her
with vaginal penetration if she did not comply with his sexual demands, though he
never carried out those threats. Jines video recorded many of the assaults, and he hid
cameras in the bathroom and his daughter’s bedroom to clandestinely view her
showering and changing clothes. The police later retrieved from Jines’s home the
pornographic video files of his daughter, who is seen sobbing and protesting
throughout.
Jines was charged with 13 counts of child exploitation, 18 U.S.C. § 2251(a), and
1 count of receiving and 1 count of possessing child pornography, id. § 2252(a)(2),
(a)(4)(B). He entered an open plea of guilty, and in exchange the government dismissed
three of the charges for child exploitation.
The district court calculated a guidelines range of life, based on a total offense
level of 51 and criminal history category of I. But the offenses each carry a statutory
maximum sentence—30 years for child exploitation and 20 for child pornography, 18
U.S.C. §§ 2251(e), 2252(b)—which, when stacked according to the guidelines’ instruction
to impose maximum and consecutive sentences to achieve what the guidelines sentence
would have been without a statutory maximum, see U.S.S.G. § 5G1.2(d); United States v.
Veysey, 334 F.3d 600, 602 (7th Cir. 2003); United States v. Thavaraja, 740 F.3d 253, 257 n.3
(2d Cir. 2014), yields a guidelines range of 340 years.
The government requested the maximum sentence while Jines urged the district
court to impose a sentence that would not ensure that he dies in prison. Citing the
Social Security mortality tables, Jines asserted that, as a 37-year-old man at the time of
sentencing, he is statistically expected to die in 44 years, so he argued that the court
should impose a sentence that would release him before he has served that amount of
time. He added that the judge should consider a lower sentence to promote marginal
deterrence because there was only one victim (whom he did not physically injure or
No. 14-1861 Page 3
vaginally penetrate), he did not distribute any of the images of his daughter, and this
was his first sex offense.
The district court sentenced him to 680 months, just shy of 57 years. The judge
declined to use Jines’s life expectancy as a sentencing boundary: “Mr. Dazey talks about
your age and that the Court should not impose a life sentence in this case. I’ve heard
those and seen those statistics before. I’m not sure I grasp them. I think each case is
decided on its own merits, as yours will be.” As for marginal deterrence, the court
rejected Jines’s attempt to downplay the severity of his offense, declaring that “[i]t
would be almost impossible to overstate the depravity of your conduct in this case.”
When the court had completed its analysis of the sentencing factors under
18 U.S.C. § 3553(a), it asked Jines’s lawyer whether his main mitigation arguments had
been addressed. Counsel replied that he needed “to think that through,” then quickly
reiterated his argument about marginal deterrence, and stated, “I think the answer is
yes. I think the Court has hit each of the circumstances within that marginal deterrence
argument, yes.”
Jines first argues on appeal that the district court erred by inadequately
addressing his primary argument in mitigation: that the court should avoid imposing a
de facto life sentence. Jines contends that the court’s statement—that it did not grasp the
cited mortality statistics—did not sufficiently explain the court’s reason for discounting
his argument. The government counters that Jines waived this argument when he
assured the court that it had sufficiently addressed his main arguments in mitigation.
We agree with the government that Jines waived his procedural argument. If, as
here, the district court asks defense counsel whether the court has satisfactorily
addressed the defendant’s principal arguments in mitigation and counsel replies yes,
then counsel is foreclosed from arguing on appeal that a principal argument remains
unaddressed. See United States v. Donelli, 747 F.3d 936, 940–41 (7th Cir. 2014); United
States v. Garcia-Segura, 717 F.3d 566, 569 (7th Cir. 2013).
Waiver aside, we agree with the government’s alternative contention that the
district judge adequately considered Jines’s argument concerning the propriety of an
effective life sentence. Resentencing is required when the district court’s discussion of a
principal mitigation argument is “so cursory that we are unable to discern the court’s
reasons for rejecting the argument.” United States v. Vidal, 705 F.3d 742, 744 (7th Cir.
2013); see United States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005). The district court
here said very little when addressing Jines’s argument about a life sentence, but a
sentence is not procedurally unreasonable if the totality of the judge’s statements
No. 14-1861 Page 4
reveals—even implicitly or imprecisely—that he considered the mitigating argument.
See United States v. Cheek, 740 F.3d 440, 456 (7th Cir. 2014). Here Judge Lawrence
articulated, for instance, that the seriousness of Jines’s offense was the overriding
concern behind the 680-month sentence:
You are here for your intentional and unrelenting sexual exploitation of a
minor child and that you sadistically documented that abuse with the
production of images and videos.
You are also here for collecting images of the sexual abuse of even
more minor children. The possession of these images is clearly a
re-victimization of each and every child depicted in those images. It is
obvious that your offenses, both in their character and in their frequency
and repetition, are the most serious under the law.
It is implicit in this explanation that Jines’s argument for a lighter sentence was
outweighed by his unforgivable actions against his daughter and countless other
minors.
Jines next challenges the substantive reasonableness of his 680-month sentence
and urges this court to heed Judge Posner’s skepticism—expressed in a concurrence in
United States v. Craig, 703 F.3d 1001 (7th Cir. 2012)—about the effectiveness of
deterrence in extremely long sentences. Judge Posner joined the per curiam opinion in
Craig upholding a 50-year sentence for a 46-year-old defendant who pleaded guilty to
violating § 2251(a) by photographing his repeated sexual assaults of a young girl. 703
F.3d at 1002. But he wrote in concurrence that “[s]entencing judges should try to be
realistic about the incremental deterrent effect of extremely long sentences,” because the
“capacity and desire to engage in sexual activity diminish in old age.” Id. at 1004.
But nothing in Judge Posner’s concurrence supports disturbing the district
court’s judgment here. Judge Posner’s comments were advisory, not mandatory: He
wrote separately, he clarified, only to remind district judges “of the importance of
careful consideration of the wisdom of imposing de facto life sentences,” Craig, 703 F.3d
at 1002, and we have since reiterated that the concurrence contains only suggestions
and not directions, see United States v. Volpendesto, 746 F.3d 273, 300 (7th Cir. 2014). The
district judge was not required to consider incremental deterrence, so his decision not to
account for it could not have rendered Jines’s sentence unreasonable.
What’s more, Jines’s below-guidelines sentence is presumed reasonable on
appeal, see United States v. Tanner, 628 F.3d 890, 908 (7th Cir. 2010), and he failed to rebut
No. 14-1861 Page 5
that presumption. The district court considered Jines’s steady employment history and
the absence of any prior criminal record, see 18 U.S.C. §3553(a)(1), but found these
factors outweighed by his repeated acts of violently molesting his daughter, the large
number of child victims whose images he had downloaded, and the pain he caused his
family, see id. § 3553(a)(1), (a)(2)(A); the need to deter others from committing similar
crimes, see id. § 3553(a)(2)(B); and the need to protect the public from a depraved and
manipulative man, see id. § 3553(a)(2)(C).
AFFIRMED.