United States v. Shutic, John ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-1673
United States of America,
Plaintiff-Appellee,
v.
John Shutic,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 CR 26--James B. Zagel, Judge.
Argued October 31, 2001--Decided December 11, 2001
Before Bauer, Coffey, and Diane P. Wood,
Circuit Judges.
Coffey, Circuit Judge. John Shutic was
charged with two counts of attempting to
persuade a person whom he believed to be
a minor to engage in sexual activity, 18
U.S.C. sec. 2422(b), two counts of
traveling across state lines with the
intent to engage in a sexual act with a
minor, 18 U.S.C. sec. 2243(a), and two
counts of knowingly transporting and
shipping child pornography in interstate
commerce by means of a computer, 18
U.S.C. sec. 2252A(a)(1), in a six-count
indictment. On August 24, 2000, Shutic
pleaded guilty to one count of
transporting child pornography and
admitted his guilt in a stipulation to
the other five counts of the indictment
referred to above, which were taken into
consideration at the time of sentencing
pursuant to U.S.S.G. sec. 1B1.2(c)./1
During sentencing proceedings, the
parties argued whether the two counts of
transporting child pornography could be
grouped for sentencing purposes. The
sentencing judge ruled that the counts
did not involve the same primary victim
and thus could not be grouped. As a
result of the judge’s ruling, Shutic’s
adjusted offense level was increased by
three levels. Shutic appeals, arguing
that the sentencing judge committed error
when he declined to group the two counts
of transporting child pornography for
sentencing purposes. We affirm.
I. Factual Background
On August 11, 1999, John Shutic used his
personal computer to sign onto the
internet using America Online (AOL) as
his internet service provider. Shutic
entered an AOL "chat room" named
"MfBryLgF," an acronym for "Male for
Barely Legal Female," where he began an
online conversation with "Jessica."
"Jessica’s" subscriber profile described
her as a 14 year-old Illinois girl, but
"Jessica" was actually Postal Inspector
Bob Williams. Shutic proceeded to ask
"Jessica" questions of a sexual nature
and later asked whether she would like to
see photographs of people having sex, and
she agreed. Shutic sent "Jessica" seven
images of adults engaged in sexually
explicit activity during the August 11
online conversation.
From August 12, 1999 to January 12,
2000, Shutic continued to engage in
online correspondence with "Jessica,"
during which Shutic discussed plans to
meet with her in order to engage in
sexual intercourse. Over that course of
time, Shutic sent email to "Jessica"
containing approximately fifty-one
sexually explicit images. On January 5,
2000, Shutic sent "Jessica" via email two
images depicting minors engaging in
sexually explicit conduct.
On January 6, 2000, Shutic flew from his
home in Cleveland, Ohio, to Chicago,
Illinois, with the intent to engage in
sexual acts with "Jessica." Upon seeing
numerous marked police cars at the
proposed rendevous point, Shutic returned
to Cleveland. On January 12, 2000, Shutic
drove from his Ohio home to Forest Park,
Illinois, again with the intent to engage
in sexual acts with "Jessica." The
defendant brought a laptop computer with
him, which he knew to contain
approximately twenty-one images of child
pornography, which were different than
the images Shutic had sent to "Jessica"
on January 5. Shutic arranged to meet
"Jessica" at a Forest Park McDonald’s
restaurant at 3:30 p.m. When the
defendant arrived at the McDonald’s and
began to approach a person he believed to
be "Jessica," postal inspectors arrested
him.
Prior to his January 12, 2000 arrest,
Shutic had also begun a similar online
conversation on AOL with "Tina," whose
online profile identified her as a 13
year-old Illinois girl. "Tina" was again
Postal Inspector Williams. Between
November 2, 1999 and January 12, 2000,
Shutic had numerous online conversations
with "Tina," similar to those he had with
"Jessica," including discussions of
proposed sexual activity. Shutic had
arranged to meet "Tina" on January 15,
but Shutic was unable to meet "Tina"
because he had been arrested three days
earlier when he attempted to meet with
"Jessica" on January 12.
On August 24, 2000, Shutic pleaded
guilty to one count of transporting child
pornography, in connection with the
January 5, 2000, email he sent to
"Jessica." In the plea agreement, Shutic
also stipulated to facts that established
his guilt to the five other offenses
charged in the indictment. Because of
Shutic’s stipulation, his plea agreement
thus was treated for sentencing purposes
as if he had been convicted of the
additional counts as charged, pursuant to
U.S.S.G. sec. 1B1.2(c). Because the child
pornography contained in the January 5,
2000, email (which formed the basis for
count three) depicted different minors
than the child pornography found on
Shutic’s laptop computer on January 12,
2000 (which formed the basis for count
six), the government recommended that the
sentencing judge not group counts three
and six, which would result in a three-
level increase in the most serious
offense level pursuant to U.S.S.G. sec.
3D1.4. The judge agreed and calculated
Shutic’s adjusted offense level to be 21,
which resulted in a guidelines imposed
sentencing range of 37 to 46 months. The
judge sentenced Shutic to a term of
imprisonment of 39 months.
II. Issue
The only issue Shutic raises on appeal
is whether the sentencing court erred in
declining to group counts three and six
for sentencing purposes under U.S.S.G.
sec. 3D1.2.
III. Analysis
United States Sentencing Guideline sec.
3D1.2 provides, in relevant part:
All counts involving substantially the
same harm shall be grouped together into
a single Group. Counts involve
substantially the same harm within the
meaning of this rule:
. . . (b) When counts involve the same
victim and two or more acts or
transactions connected by a common
criminal objective or constituting part
of a common scheme or plan.
Application Note 2 of the Commentary to
sec. 3D1.2 provides that:
[t]he term ’victim’ is not intended to
include indirect or secondary victims.
Generally, there will be one person who
is directly and most seriously affected
by the offense and is therefore
identifiable as the victim. For offenses
in which there are no identifiable
victims (e.g., drug or immigration
offenses, where society at large is the
victim), the "victim" for purposes of
subsections (a) and (b) is the societal
interest that is harmed. In such cases,
the counts are grouped together when the
societal interests that are harmed are
closely related . . . .
Shutic argues that the primary victim in
a violation of sec. 2252A(a)(1) is
society, and thus the sentencing court
erred when it declined to group counts
three and six of the indictment. Shutic
urges us to adopt the holding of the
Fourth Circuit in United States v. Toler,
901 F.2d 399, 403 (4th Cir. 1990), which
concluded that society in general was the
primary victim of sec. 2252A(a)(1) and
the minors depicted in the child
pornography were secondary victims. Under
the Fourth Circuit’s holding that society
was the primary victim of sec.
2252A(a)(1), defendants would be entitled
to have multiple counts of child
pornography grouped under U.S.S.G. sec.
3D1.2 because the counts would involve
the same primary victim, society.
We need not spend much time discussing
Shutic’s argument because we recently
addressed precisely the issue he raises.
United States v. Sherman, No. 00-2961,
2001 WL 1205378 (7th Cir. Oct. 11, 2001).
In Sherman we considered the same
arguments as Shutic raises and held that
"because the children depicted in the
pornography suffer a direct and primary
emotional harm when another person
possesses receives or distributes the
material . . . these counts should not be
grouped under sec. 3D1.2." Sherman, 2001
WL 1205378, *8. In so holding, we
recognized that the victim in child
pornography is the child in the image,
who suffers a direct harm through the
invasion of his or her privacy. Id.
We agree with the holding in Sherman
that the primary victims in child
pornography are the children depicted. In
Sherman, we considered and rejected the
contrary reasoning of Toler. Sherman,
2001 WL 1205378. In so doing, we noted
that the "possession, receipt and
shipping of child pornography directly
victimizes the children portrayed by
violating their right to privacy."
Sherman, 2001 WL 1205378, at *7. We
observed that "[c]hildren . . . suffer
profound emotional repercussions from a
fear of exposure, and the tension of
keeping the abuse a secret." Id. (citing
New York v. Ferber, 458 U.S. 747, 759 n.
10 (1982) (citing Schoettle, Child
Exploitation: A Study of Child
Pornography, 19 J. Am. Acad. Child
Psychiatry 289, 296 (1980))). We have
also observed that "[c]oncern for the
welfare of the children who are used to
create pornography is part of the public
concern over child pornography . . . ."
United States v. Richardson, 238 F.3d
837, 839 (7th Cir. 2001). Finally, we
note again, as we did in Sherman, that
six out of seven of our sister circuits
have reached the issue and have similarly
concluded that the children depicted in
child pornography are the primary victims
of the crime. See United States v.
Tillmon, 195 F.3d 640, 644 (11th Cir.
1999); United States v. Norris, 159 F.3d
926, 929 (5th Cir. 1998), cert. denied,
526 U.S. 1010 (1999); United States v.
Hibbler, 159 F.3d 233, 236-37 (6th Cir.
1998), cert. denied, 526 U.S. 1030
(1999); United States v. Boos, 127 F.3d
1207, 1211 (9th Cir. 1997), cert. denied,
522 U.S. 1066 (1998); United States v.
Ketcham, 80 F.3d 789, 793 (3d Cir. 1996);
United States v. Rugh, 968 F.2d 750, 755
(8th Cir. 1992); but see Toler, 901 F.2d
at 403.
Overturning circuit precedent requires
compelling reasons. United States v.
Walton, 255 F.3d 437, 443 (7th Cir.
2001). Shutic has failed to provide any.
We are convinced that our reasoning in
Sherman is proper and we decline Shutic’s
invitation to revisit that precedent.
IV. Conclusion
Shutic does not contest the government’s
claim that different children were
depicted in the materials involved in the
two counts of transporting child
pornography. Thus, the sentencing judge’s
action in declining to group the counts
for sentencing purposes under sec. 3D1.2
was proper as each count had a different
primary victim. We decline to revisit the
precedent we set forth in Sherman and
thus we AFFIRM Shutic’s conviction and
sentence.
FOOTNOTE
/1 U.S.S.G. sec. 1B1.2(c) provides that "[a] plea
agreement . . . containing a stipulation that
specifically establishes the commission of addi-
tional offenses shall be treated as if the defen-
dant had been convicted of additional counts
charging those offenses. Consequently for sen-
tencing purposes, Shutic’s plea was treated as if
he had been convicted of all six counts charged
in the indictment.