United States v. John McLaughlin , 760 F.3d 699 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-3255
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN MCLAUGHLIN,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:10-CR-01013-1 — Ronald A. Gúzman, Judge.
ARGUED SEPTEMBER 16, 2013 — DECIDED JULY 29, 2014
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’ impris-
onment, a fine of $50,000, and 20 years of supervised release.
He challenges his sentence in several respects. We affirm.
2 No. 12-3255
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 pornogra-
phy 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 photo-
graphs 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 forfei-
ture 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;
No. 12-3255 3
(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 transmis-
sion 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. See U.S.S.G. § 5E1.2(d). The PSR included the most
recent monthly costs for imprisonment, community confine-
ment and supervision as set forth by the Administrative Office
of the United States Courts. R. 64, at 20.
1
Excluding retirement accounts, McLaughlin had a net worth of approxi-
mately $120,000.
4 No. 12-3255
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 main-
tained 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 influ-
enced 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.
No. 12-3255 5
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 enhance-
ment under section 2G2.2(b)(4) for “material that portrays
sadistic or masochistic conduct or other depictions of vio-
lence.” 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 suscepti-
bility 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 (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. Procedural errors include, among other things, incor-
6 No. 12-3255
rectly calculating the guidelines range, or failing to explain
adequately the chosen sentence. Gall, 552 U.S. at 51; 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 (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 enhance-
ments 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 penetra-
tion of a minor by an adult would necessarily cause pain and
therefore qualify for the section 2G2.2(b)(4) sadism and
No. 12-3255 7
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 con-
tained 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, 747 (7th Cir. 2008).
Third, the enhancement in this case was not, as a factual
matter, based solely on the age of the children portrayed. The
government argued in favor of the application of section
2G2.2(b)(4) not only because of images of sexual penetration of
prepubescent minors but also because McLaughlin possessed
images of acts designed to degrade and humiliate the victims.
See United States v. Rodgers, 610 F.3d 975, 978–79 (7th Cir. 2010)
(holding that the 2G2.2(b)(4) enhancement applies not only to
sexual acts likely to cause physical pain but also to sexual
gratification which is purposefully degrading and humiliating,
and to images of conduct which causes mental suffering or
psychological or emotional injury to the victim); United States
v. Turchen, 187 F.3d 735, 739–40 (7th Cir. 1999) (same). Specifi-
cally, the government contended that images of victims forced
to perform bestiality and images of men urinating or ejaculat-
ing on the faces of victims would be considered degrading and
humiliating without reference to the age of the victims in-
8 No. 12-3255
volved. See Turchen, 187 F.3d at 737–40 (finding that an image
of an adult urinating on the face of a child victim qualified for
the section 2G2.2(b)(4) enhancement). McLaughlin’s collection
included all of these types of images.
Moreover, the district court expressly found that the
2G2.2(b)(4) enhancement did not constitute double-counting
because it was possible to apply the 2G2.2(b)(2) increase for
material portraying a prepubescent minor without any
depiction of violence. The court noted that both 2G2.2(b)(2)
and 2G2.2(b)(4) share an element of sexual exploitation of a
child but that age alone was sufficient to apply subsection
(b)(2). The added element of violence was required for subsec-
tion (b)(4). The court also noted that it was applying the
2G2.2(b)(4) enhancement in this case because of images that
portrayed conduct “aimed at degrading the individual.” R. 61,
at 14. Because some of the images possessed by McLaughlin
fell into that category irrespective of the age of the victim, the
court concluded there was no overlap between the two
enhancements and thus no double-counting. McLaughlin’s
objection to the 2G2.2(b)(4) enhancement therefore fails on both
the law and the facts.
B.
McLaughlin next contends that his sentence was based on
speculation and unfounded allegations. First, he complains
that the district court accepted the government’s argument
regarding the market thesis, which he asserts is nothing more
than unfounded conjecture. He describes the market thesis as
the theory that a defendant’s possession and distribution of
child pornography increases the demand for production,
No. 12-3255 9
leading to the sexual exploitation of more children. He asserts
that there is no empirical proof for a causal relationship
between consumption and production of pornography in the
internet age. Contrary to the defendant’s claim, though, the
district court did not rely on the market thesis in setting his
sentence. In responding to defense counsel’s argument about
the market thesis, the district court noted:
As far as the market theory is concerned, I am not of the
opinion that it’s either one or the other, that is, that
either the images would not be produced if there wasn’t
a market or that every time someone uses them the
market is expanded. It seems to me there’s an element
of both here. Part of the motivation for producing these
pictures is showing them to others. … And the fact that
there are so many others out there who want to see
them is a clear motivation. There is at least some truth,
in my opinion, to the market thesis. I don’t believe that
it is a 100 percent accurate description of the effects of
the traders and possessors of these materials, but there
is, in my opinion, some basic truth for it.
We come down to, as almost always in these situations,
deterrence and rehabilitation.
R. 61, at 35. The court then proceeded to fashion a sentence
focused mainly on deterrence and rehabilitation, taking into
account the other factors set forth in 18 U.S.C. § 3553(a).
As these remarks indicate, the court did not reach a
conclusion on the validity of the market theory, much less rely
on it in setting McLaughlin’s sentence. Instead, the court
properly relied on the section 3553(a) factors in determining
10 No. 12-3255
the sentence. Nor is there any reason to conclude that the court
erred in finding “some basic truth” in the market thesis. See
Paroline v. United States, 134 S. Ct. 1710, 1717 (2014) (“The
demand for child pornography harms children in part because
it drives production, which involves child abuse.”). At least
one of the victim impact letters submitted to the court provides
anecdotal support for the theory that consumers of child
pornography sometimes influence producers to abuse more
children. The mother of a child portrayed in images possessed
by McLaughlin reported that her daughter’s “abuser adapted
to serve his market—whatever his audience was looking to
acquire, that’s what happened to her.” R. 64 (attachment). We
emphasize that there is no indication in the record that
McLaughlin personally influenced that particular abuser; that
child’s abuse occurred many years prior to McLaughlin’s
arrest. But that letter supports the idea that consumers of child
pornography influence producers in ways that lead to in-
creased harms to children. See United States v. Blum, 534 F.3d
608, 612 (7th Cir. 2008), abrogated on other grounds by United
States v. Vizcarra, 668 F.3d 516 (7th Cir. 2012) (noting Congress’s
determination that the manufacture and possession of any
child pornography itself feeds the market and increases
demand for it).
McLaughlin next objects that the court relied on an un-
founded observation that, as a consumer, he was just a step
away from committing a contact offense against a child.
According to McLaughlin, there is no empirical support for the
idea that consumers of child pornography are more likely to
commit contact offenses, and in his case, a psychiatrist had
No. 12-3255 11
opined that he presented a very low risk of recidivism. In
discussing the need for deterrence, the court remarked:
Your client’s conduct, his clear, almost gleeful enjoy-
ment of these materials, his solicitation of more materi-
als, his enjoyment of sharing these materials with others
and seeking to have others give him new materials is
not only troubling in the sense that it’s so contrary to
what is decent, it’s troubling in the sense that it’s a clear
motivation that must be with him all the time. And
that’s just a step away from actual engagement in the
abuse of children himself.
R. 61, at 16. Contrary to McLaughlin’s claim, nothing in that
statement indicates that the court concluded that McLaughlin
was likely to commit contact offenses. Instead, the court was
accurately describing McLaughlin’s conduct as a step removed
from contact offenses. A review of the sentencing transcript as
a whole indicates that the court was aware of the psychiatrist’s
report and accounted for the difference between the harms
caused by a consumer versus a producer of child pornography,
expressly noting that “this defendant is not a producer of the
pornographic images.” R. 61, at 34. Thus the court was not
confused about the facts underlying McLaughlin’s conduct and
did not incorrectly assume that McLaughlin was also a
producer or a likely contact offender, as the defendant asserts.
C.
Because McLaughlin did not object to the imposition of a
fine at the time of sentencing, we review the court’s decision to
levy a fine for plain error only. United States v. Riley, 493 F.3d
803, 810 (7th Cir. 2007); United States v. Bauer, 129 F.3d 962, 964
12 No. 12-3255
(7th Cir. 1997). In order to reverse for plain error, we must find
(1) error (2) that is plain, and (3) that affects the defendant's
substantial rights. United States v. Olano, 507 U.S. 725, 732
(1993); Aslan, 644 F.3d at 540. An error is plain if it is clear or
obvious. Olano, 507 U.S. at 734; Aslan, 644 F.3d at 540. “An
error ‘affects the defendant's substantial rights’ when it is
prejudicial, that is, when it has affected the outcome of the
district court proceedings.” Aslan, 644 F.3d at 540–41 (quoting
Olano, 507 U.S. at 734).
McLaughlin contends that the court erred by not ade-
quately explaining the basis for the fine. We find no error, plain
or otherwise, in the district court’s decision. The court adopted
the PSR, which contained an extensive basis for the imposition
of a fine. “[T]he rule in this circuit is that express or specific
findings regarding each of the relevant factors to be considered
before imposing a fine are not required.” Bauer, 129 F.3d at 966.
If the court adopts the PSR, the defendant does not object to
the PSR, the PSR contains an adequate basis to support the
fine, and it is clear that the court considered the relevant
statutory factors, there is no error. See Bauer, 129 F.3d at 968.
First, in this case, the PSR set forth in great detail McLaughlin’s
ability to pay a fine, concluding that he had more than $130,000
available to pay a fine. Second, the PSR noted that the fine was
required in every case except where the defendant demon-
strates an inability to pay. McLaughlin does not contend that
he is unable to pay. Third, the PSR included the factors the
court should consider in setting the amount of the fine,
including the costs of incarceration. The PSR noted that the
Administrative Office of the United States Courts currently
estimated the monthly cost of confinement to be $2357.
No. 12-3255 13
McLaughlin was sentenced to 130 months’ imprisonment, a
time frame expected to cost the government approximately
$306,410. A fine of $50,000 was well within the guidelines
range, far less than the cost of imprisonment, and within
McLaughlin’s well-documented ability to pay. There is no
obvious error in the district court’s assessment, much less one
that affects McLaughlin’s substantial rights.
D.
We may quickly dispense with McLaughlin’s remaining
arguments, namely that the court failed to address his argu-
ment regarding his susceptibility to abuse in prison, and that
the court ordered a substantively unreasonable sentence.
McLaughlin contended that he would be unusually susceptible
to abuse in prison because he had been convicted of a crime
involving child pornography. But he did not raise any facts
specific to himself personally that would render him more at
risk in prison than any other defendant convicted of an offense
involving child pornography. Because his argument is a
generic challenge that would apply to every defendant
convicted of a child pornography offense “rather than one
tailored to his unique characteristics and circumstances, it is
not one that the district judge must explicitly address.” United
States v. Schmitz, 717 F.3d 536, 542 (7th Cir. 2013). Our review
of the PSR reveals no special vulnerability for McLaughlin
based on his personal characteristics. The court was not
required to expressly address this generic argument in mitiga-
tion.
McLaughlin also maintained that his sentence was substan-
tively unreasonable because the United States Sentencing
14 No. 12-3255
Commission recently released a report to Congress calling for
revisions to section 2G2.2, and because many courts recognize
flaws in that particular guideline and sentence defendants
below the guidelines range to account for these perceived
flaws. See United States Sentencing Comm'n, P. Saris et al.,
Federal Child Pornography Offenses (2012) (hereinafter
“Report”).
The Eleventh Circuit recently addressed and rejected a very
similar argument from a defendant challenging the continued
validity of section 2G2.2 in light of the Report:
We agree with the government that the Commission's
2013 report does not render the non-production child
pornography guidelines in § 2G2.2 invalid or illegiti-
mate. Rather, the Commission recommends that Con-
gress enact legislation providing the Commission with
express authority to amend [§ 2G2.2]” The publication
of the 2013 report does not change the statutory sen-
tencing scheme, the applicable sentencing guidelines, or
the binding precedent about § 2G2.2 in this Circuit.
United States v. Cubero, — F.3d —, —, 2014 WL 2595781, *9
(11th Cir. June 11, 2014). In Cubero, the court commented that,
although the district court was certainly free to consider the
Report in choosing the ultimate sentence, the Report did
nothing to invalidate section 2G2.2. Nor did the court’s use of
section 2G2.2 render Cubero’s sentence procedurally or
substantively unreasonable because the absence of empirical
evidence is not an independent ground that compels the
invalidation of a guideline. Cubero, 2014 WL at *9. See also
United States v. Grigsby, 749 F.3d 908, 910–12 (10th Cir. 2014),
No. 12-3255 15
petition for cert. filed, — U.S.L.W. — (U.S. July 10, 2014) (No. 14-
3146) (rejecting a similar categorical challenge to guideline
2G2.1 based on the Report). We are inclined to agree with our
sister circuits. Congress and the Commission are responsible
for altering the guidelines, and the absence of an empirical
basis does not render a guidelines provision per se unreason-
able or irrational. Grigsby, 749 F.3d at 911 (citing United States
v. Miller, 665 F.3d 114, 121 (5th Cir. 2011), cert. denied, 132 S. Ct.
2773 (2012)). The district court was free to consider the Report
but using the guideline in its current form did not render
McLaughlin’s sentence substantively unreasonable. “[D]istrict
courts must treat the Guidelines as the starting point and the
initial benchmark.” Kimbrough v. United States, 552 U.S. 85, 108
(2007). Contrary to McLaughlin’s contention, then, the district
court was obligated to consider the properly calculated
guidelines sentence in determining the appropriate sentence.
The court was clearly aware that it was free to reject the
guidelines sentence; the court in fact sentenced McLaughlin
twenty-one months below the low end of the guidelines range.
In short, there is nothing substantively or procedurally amiss
with McLaughlin’s sentence. Rita, 551 U.S. at 341–49; Anobah,
734 F.3d at 736; Mykytiuk, 415 F.3d at 608 (sentences that are
within the properly calculated guidelines range are entitled to
a rebuttable presumption of reasonableness). For all of these
reasons, the judgment of the district court is
AFFIRMED.