United States v. Dennis Houston , 745 F.3d 863 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-2713
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DENNIS HOUSTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 12 CR 424 — Rubén Castillo, Chief Judge.
ARGUED JANUARY 28, 2014 — DECIDED MARCH 20, 2014
Before WOOD, Chief Judge, and EASTERBROOK and KANNE,
Circuit Judges.
PER CURIAM. Dennis Houston, who was sentenced to 216
months in prison for possessing and transporting child
pornography, argues that the district court clearly erred in
applying a five-level increase to his total offense level based on
the finding that he sexually abused a minor. See U.S.S.G.
§ 2G2.2(b)(5). Houston contends that the court should not have
relied on the statements of the child victim, given inconsistent
2 No. 13-2713
evidence in the record over the date when the girl informed
her parents of the abuse. Because the judge’s finding is well
supported by the record, we affirm the judgment.
Houston, then age 44, was caught in 2012 with more than
a thousand pornographic images of children on his computer;
he pleaded guilty to possessing and transporting child
pornography. See 18 U.S.C. § 2252A(a)(1), (a)(5)(B). Based on a
total offense level of 42 and criminal history score of I, the
probation officer calculated a guidelines sentence of 360
months, which was also the statutory maximum for the two
counts. See 18 U.S.C. § 2252A(b)(1), (b)(2). Houston objected to
all of the increases in his offense level, but the only argument
he raises on appeal concerns the five-level increase tied to the
sexual abuse of a minor. See U.S.S.G. § 2G2.2(b)(5).
At the sentencing hearing, the government presented
evidence to show that on at least four occasions in the mid-
2000s Houston sexually abused a preschool-aged neighbor
when she came over to play with one of his daughters. The
primary piece of evidence was a videotaped police interview
from 2007 in which the girl—then five years old—described
how Houston touched his “private” to her “private,” made her
touch his “private,” and then covered her stomach, crotch, and
hands in a substance coming out of his “private” that she
referred to as “wax.” She said that Houston covered her in
“wax” more than once and added that the episodes took place
on the sofa in Houston’s basement, on a sofa in his living room,
in his laundry room, and on his bed. She identified Houston by
his first name, knew his daughters’ names, and described his
appearance. She stated that these events happened when she
was three or four years old and said that she told her mother
No. 13-2713 3
about them. To show that Houston had a sexual interest in
ejaculating on young children, the government provided a chat
log found on his computer in which he asked someone to fulfill
his “fantasy” by ejaculating on a picture of an unidentified
young girl. The prosecutor also noted that Houston’s court-
appointed psychologist diagnosed him with pedophilia based
on his reported attraction to children under the age of thirteen.
Further, as set forth in the government’s undisputed version of
the offense, a twelve-year-old girl said that Houston exposed
himself in front of her and a three-year-old boy reported that
someone in Houston’s home licked his penis.
Houston countered that the five-year-old girl’s statements
were unreliable based on two discrepancies in reports that the
government provided as evidence. First, the reports contained
conflicting dates about when the girl was said to have
informed her mother: According to a police report (from 2007),
the girl informed her mother of the abuse in 2006, but an FBI
report (from 2012, after Houston’s arrest) states that the mother
learned of the abuse in 2005. Second, the reports contained
different reasons for why the parents delayed in reporting the
abuse. Houston insisted that “[the mother’s] story changes
completely” in explaining the delay. In particular he pointed
out that the parents declined to press charges at the time of the
girl’s interview “based on concerns for [her] mental health and
well being,” but that during the mother’s interview with the
FBI she attributed the delay to “family issues” and described
how her husband’s drinking problem worsened as she and her
husband debated whether to report the abuse to the police.
The district court accepted the government’s version and
found that Houston had sexually abused a minor on multiple
4 No. 13-2713
occasions. The court credited the girl’s statements, noting that
her description of the abuse matched her parents’ statements
and resembled the fantasy described in Houston’s chat logs.
The court also noted that the girl’s statements were consistent
with the psychological report describing Houston’s sexual
interest in young children, in addition to two other accusations
noted in the presentence report. After applying the five-level
increase and calculating the guidelines sentence as 360 months,
the court imposed a below-guidelines sentence of 216 months.
The sentencing guideline at issue here provides a five-level
increase in the offense level based on “a pattern of activity
involving the sexual abuse or exploitation of a minor.” U.S.S.G.
§ 2G2.2(b)(5). This guideline applies if the defendant engaged
in two or more instances of sexual abuse (regardless of the
number of victims) at any time before sentencing. See United
States v. Laraneta, 700 F.3d 983, 987 (7th Cir. 2012); United States
v. Polson, 285 F.3d 563, 567–68 (7th Cir. 2002). We review the
district court’s factual findings for clear error. See United States
v. Grigsby, 692 F.3d 778, 787–88 (7th Cir. 2012).
On appeal Houston argues that the district court clearly
erred in finding that he sexually abused a minor. He maintains
that discrepancies in the 2007 police report and the 2012 FBI
report render the government’s evidence too unreliable for use
at sentencing. The discrepancies he identifies concern (1) what
year the girl told her mother about the abuse and (2) why the
parents delayed in reporting the abuse.
But the court did not clearly err in crediting the
government’s evidence, particularly the five-year-old girl’s
statements. Although the reports contain inconsistent dates
No. 13-2713 5
over when she told her mother of the abuse (one report lists
2005, the other 2006), minor discrepancies are not a basis for
finding clear error. See United States v. Nicksion, 628 F.3d 368,
376 (7th Cir. 2010); United States v. Robinson, 586 F.3d 540,
546–47 (7th Cir. 2009). The girl said that the abuse occurred
when she was three or four years old (approximately 2005 or
2006), and the district court could find her statements to be
sufficiently reliable given that she has steadfastly insisted
(to her mother, to the police, and to the FBI) that she suffered
repeated sexual abuse. See Doe v. United States, 976 F.2d 1071,
1079 (7th Cir. 1992) (explaining that three-year-old’s statements
about sexual abuse were reliable because “the basic framework
of [her] story remained the same”). The district court also
reasonably noted that her description of sexual abuse was
corroborated by Houston’s chat about his ejaculation fantasy
as well as the two other accusations of sexual misconduct.
See United States v. Meschino, 643 F.3d 1025, 1029 (7th Cir. 2011)
(chat logs and testimony from another victim corroborated
court’s finding of sexual abuse); United States v. Paull, 551 F.3d
516, 527 (6th Cir. 2009) (statements from victim’s family
members corroborated victim’s description of sexual abuse);
United States v. Stewart, 462 F.3d 960, 964 (8th Cir. 2006) (sexual
“chat room banter was sufficiently reliable to support the
sentencing enhancement”).
And as for the parents’ explanation for their delay in
reporting the abuse, the district court was entitled to accept
their statements at the sentencing hearing as reconciling any
possible discrepancy. The parents recounted their thought
process fully to the court, disclosing their fears that testifying
in front of Houston would traumatize their daughter, leading
6 No. 13-2713
them to delay reporting and then decline to press charges, as
noted in the 2007 police report. They also explained that they
warned the other parents in the neighborhood and believed
that Houston was under watch by the police because he had
been caught in 2006 peeping into a neighbor’s bathroom
window. Nothing in the record leads us to question the court’s
decision to credit this explanation, nor do we see how the
parents’ delay undermines the reliability of the girl’s
statements. With all of the evidence corroborating her
statements and the lack of evidence contradicting her, the
district court did not clearly err in making its factual finding.
AFFIRMED.