United States v. Cunningham, Thomas ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3006
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
THOMAS M. CUNNINGHAM,
Defendant-Appellant.
____________
Appeal from the United States District Court for the
Southern District of Indiana, New Albany Division.
No. NA 02-008-CR-01-H/N—David F. Hamilton, Judge.
____________
ARGUED FEBRUARY 18, 2004—DECIDED APRIL 19, 2005
____________
Before COFFEY, EASTERBROOK and EVANS, Circuit Judges.
COFFEY, Circuit Judge. Thomas Cunningham was convicted
after a jury trial of one count of producing child pornography
in violation of 18 U.S.C. § 2251(a) and sentenced to a term
of 210 months’ imprisonment. On appeal, Cunningham
claims that: 1) his conviction should be reversed because the
government failed to lay a proper foundation for the ad-
mission into evidence of the photographic prints reproduced
from the digital files on his computer; and 2) his sentence
should be vacated because the trial judge’s decision to
impose an upward departure was based on factual findings
2 No. 03-3006
determined by the judge and not a jury in violation of his
Sixth Amendment right to a jury trial, or in the alternative,
because the upward departure imposed by the court was
unreasonable. We affirm his conviction and sentence.
I. BACKGROUND
Cunningham, a 53 year-old truck driver, met 14 year-old
Amy Doe1 in June 2001 via an internet chat room2 intended
for use by teenagers. Cunningham initially represented
himself to Amy as a 19 year-old man and engaged the child
in discussions that were sexually explicit in nature.
Cunningham continued “chatting” with the 14 year-old under
the guise of his fabricated teenaged identity for several
months until August 2001 when he finally revealed his true
age. Despite disclosing his true age and admitting his de-
ception to Amy, Cunningham was able to convince the girl
to continue to engage with him over the internet and even-
tually over the telephone.
Cunningham maintained his “relationship” with Amy via
the internet and phone until December 2001, when he per-
suaded the girl to meet with him personally near her home
in Bedford, Indiana. During the following five months,
Cunningham met with Amy on a regular basis, and during
1
We use “Amy Doe” throughout this order as a pseudonym to
protect the identity of the then 14-year-old victim.
2
“A chat room is a place on the world wide web where Internet
users with common interests can sign on to communicate in real
time. Generally, when users enter a chat room they see a list of
other persons (usually known by pseudonyms) who have also signed
on to the chat room site. To ‘chat,’ users type a message which can
be seen almost immediately by all of the other persons ‘present’ in
the chat room. They may, in turn, respond.” United States v.
Mitchell, 353 F.3d 552, 554 n.2 (7th Cir. 2003).
No. 03-3006 3
his encounters with her he induced her to engage in sexual
relations. To facilitate his illicit relations with the child,
Cunningham on two separate occasions took her to motel
rooms, and at other times lured her into the sleeping com-
partment of his semi-trailer. In addition to having sexual
contact with his young victim, Cunningham also used a digi-
tal camera to photograph the 14 year-old in various stages
of undress. Among these photographs were three taken by
Cunningham of Amy while in the sleeping compartment of
his semi-trailer with her genital area exposed. Cunningham
later transferred these and other digital photographs of
Amy to his laptop computer and saved the pictures on his
laptop’s hard drive as image files.
Cunningham’s illegal activity was halted in May 2002
when his unlawful activities were discovered by law en-
forcement officials. On May 6, 2002, the FBI executed a
search warrant at Cunningham’s residence in Dayton, Ohio
in an effort to find items relating to child exploitation. Dur-
ing their search of Cunningham’s residence, the agents
discovered his laptop computer. Upon investigation of the
computer’s files, the agents discovered the partially-nude
digital photographs Cunningham had taken of Amy during
their encounters. To preserve the digital photographs as evi-
dence, the agents testified that they removed the hard drive
containing the photographs from Cunningham’s laptop, and
made printouts of the pictures on photographic paper for
use in their criminal case against Cunningham. Subse-
quently, the defendant Cunningham was indicted on one
count of producing child pornography in violation of 18 U.S.C.
§ 2251(a),3 and arrested the next day. After a jury trial,
3
18 U.S.C. § 2251(a) provides in relevant part that “[a]ny person
who employs, uses, persuades, induces, entices, or coerces any minor
to engage in . . . any sexually explicit conduct for the purpose of pro-
(continued...)
4 No. 03-3006
Cunningham was convicted and sentenced to 210 months’
imprisonment.
The 210-month sentence imposed by the judge was based
in large part on provisions of the U.S. Sentencing Guidelines.
Under the Guidelines, Cunningham’s base offense level for
violating § 2251 was 27, which combined with his Criminal
History Category of I yielded an initial sentencing range of
70 to 87 months. See U.S.S.G. § 2G2.1. The court imposed
adjustments from this sentencing range for his victim’s age
(less than sixteen at the time of the offense), U.S.S.G.
§ 2G2.1(b)(1), and having used a computer or the internet to
facilitate his enticement of his victim, U.S.S.G. § 2G1.1(b)(3),
resulting in a sentencing range of 108 to 135 months. The
court also departed from this Sentencing Guideline range
and increased his sentence by taking into account his acts
of illicit sexual contact during the course of his criminal
activity with the 14 year-old not charged in the indictment
for producing child pornography. The judge based his deci-
sion to depart upward on testimony given by Amy, in which
she described numerous sexual encounters with Cunningham
over the five-month period.4 The court found that
3
(...continued)
ducing any visual depiction of such conduct, shall be punished . . . if
that visual depiction was produced using materials that have been
mailed, shipped, or transported in interstate or foreign commerce
by any means, including by computer . . . .”
4
Amy Doe testified to the following: a first meeting when the two
engaged in “Kissing and Petting . . . . he touched me and I would
touch him . . . . [i]n areas of [my] body that other people don’t
normally touch [me],” Trial Tr. I at 63-64; a second meeting, near
a lake in Bedford, In., when the victim “perform[ed] oral sex on
[Cunningham],” id. at 75-76; a series of meetings that took place
in the sleeping compartment of Cunningham’s semi-trailer, when
the two “engage[d] in sexual intercourse” on as many as five dif-
(continued...)
No. 03-3006 5
Cunningham’s “molestation and abuse” of Amy involved “at
least six incidents of quite explicit conduct” “over the course
of five months” that was “relevant conduct” to Cunningham’s
conviction for producing child pornography. Sentencing Tr.
at 54-55. The court determined that Cunningham’s sexual
abuse of Amy was not “accounted for in the sentencing guide-
line for production of child pornography,” Cunningham’s
offense of conviction, see U.S.S.G. § 2G2.1, because that
guideline provision does not set forth any enhancements for
sexually abusing a minor. Sentencing Tr. at 54. Accordingly,
in deciding that a four-level upward departure was appro-
priate, the judge relied on a related provision of the guide-
lines which pertains to relevant conduct for trafficking in
child pornography, U.S.S.G. § 2G2.2, which tells the court
to impose an offense level increase of five for a defendant
who “engaged in a pattern of activity involving the sexual
abuse or exploitation of a minor.” Finding this analogy
appropriate, the court imposed a four-level upward depar-
ture from Cunningham’s Sentencing Guideline range of 108
to 135 months, which resulted in a sentencing range of 168
to 210 months’ imprisonment. The court chose a sentence at
the top of this range “in light of [Cunningham’s] . . . complete
lack of remorse and the serious consequences that this
criminal conduct has had for the victim in this case.”
Sentencing Tr. at 56.
II. ANALYSIS
A. Admission into Evidence of the Photographic Prints
On appeal, Cunningham argues that his conviction should
4
(...continued)
ferent occasions, id. at 81-82, 90, 95, 98, & 104; two meetings at
motels in the Bedford area when the two “engage[d] in sexual ac-
tivity,” id. at 114; and a “whole trip” “near the end of the relation-
ship” “with sex in it,” id. at 115.
6 No. 03-3006
be reversed because the court erred in admitting in evidence
photographic prints of three sexually-explicit digital pictures
that he took of Amy5 without requiring the government
to establish a proper foundation for the admission of the
photographs. He contends that had the pictures not been
admitted, the evidence would have been insufficient to sus-
tain his conviction. After reviewing the record, we conclude
that, although Cunningham’s attorney initially raised this
argument when he objected at trial to the introduction of
the pictures, his subsequent statement to the court that he
was withdrawing his prior objection constitutes waiver of
this issue and precludes our review of the argument
Cunningham has raised. United States v. Rhodes, 330 F.3d
949, 952 (7th Cir. 2003).
The government moved to admit the pictures at trial fol-
lowing its direct examination of the victim. The government
marked the pictures for identification and displayed them
to Amy while on the witness stand, and she identified her-
self as the person depicted in the images. Cunningham’s
attorney objected to the admission of the pictures on the
basis of Amy’s testimony alone, arguing that the victim’s
identification of herself in the pictures was insufficient to
demonstrate that the photographic prints were actual repro-
ductions of the digital files recovered from Cunningham’s
laptop computer. In response, the government stated that
it would provide testimony from an FBI agent later in the
trial who would “testify he recovered these [pictures] from
Mr. Cunningham’s residence and laptop.” The court pro-
ceeded to conditionally admit the pictures as exhibits
“subject to sufficient foundation being shown about the
recovery.”
5
These three pictures were the ones taken by Cunningham of
Amy while in the sleeping compartment of his semi-trailer with
her genital area exposed.
No. 03-3006 7
Thereafter, the government introduced the testimony of
Agent Russell Fox, a member of the FBI’s “computer anal-
ysis response team.” Agent Fox testified that he had recov-
ered the digital photographic files from the hard drive of
Cunningham’s laptop computer and reproduced these files
from the computer onto photographic paper, and further-
more that the pictures the court had conditionally received
into evidence, subject to a proper foundation being set forth
for their admission, were true and accurate printed copies
of the digital image files he discovered on Cunningham’s
computer. Following Agent Fox’s testimony, the government
argued that it had “tied-up” the victim’s testimony concern-
ing the identification of the pictures with “the computer
information” by establishing how they had discovered and
recovered the evidence from the laptop computer found in
Cunningham’s home by FBI agents on May 6, 2002. Accord-
ingly, the prosecution claimed they had set forth a sufficient
basis for the admission of the photographs. At this point,
Cunningham’s counsel agreed and withdrew his objection
to the admission of the pictures, stating that his previous
objection as to foundation had been “[c]ontingent on [the
government] tying it up for this witness (Agent Fox), and I
believe he has done that.” The judge, at this time, concluded
that sufficient foundation for admission of the pictures had
been established, and accepted the photographs into evidence.
Cunningham’s attorney at no time renewed his prior ob-
jection, nor did he make any additional objections to the
pictures being admitted as exhibits.
We conclude that Cunningham’s attorney’s affirmative
decision to withdraw his objection to the admission of the
pictures as exhibits resulted in a waiver of any argument
that the government failed to set forth a sufficient founda-
tion for their admission. See United States v. Redditt, 381
F.3d 597, 602 (7th Cir. 2004). Although Cunningham’s trial
counsel initially objected to admission of the pictures, he
later explicitly withdrew his objection and furthermore failed
8 No. 03-3006
to make any additional objections in the proceedings below
to their admission. “When trial counsel affirmatively rep-
resents that he has no objection to the admission of certain
evidence, he has intentionally waived any argument to the
contrary.” Id.; see also United States v. Pittman, 319 F.3d
1010, 1012 (7th Cir. 2003); United States v. Cooper, 243 F.3d
411, 416 (7th Cir. 2001). “And since a finding of waiver pre-
cludes appellate review, we [will not] review the district court’s
decision to admit [the pictures] into evidence.” Redditt, 381
F.3d at 602. Accordingly, we affirm Cunningham’s convic-
tion.
B. Sentencing
Cunningham next argues that his sentence should be
vacated and that the matter should be remanded to the
district court for a new sentencing hearing. Specifically,
Cunningham claims that sentencing enhancements imposed
by the trial judge deprived him of his Sixth Amendment right
to a jury trial. See United States v. Booker, 125 S. Ct. 738(2005). However, because this argument was not presented
to the district court and raised for the first time, on appeal,
in a supplemental brief addressing the Supreme Court’s
decision in United States v. Blakely, 124 S. Ct. 2531 (2004)
our review is for “plain error” only. Booker, 125 S. Ct. at 769;
United States v. Lee, 399 F.3d 864, 866 (7th Cir. 2005); Fed.
R. Crim. P. 52(b). In order for an error to be plain and lead
to reversal, it must interfere with the defendant’s substan-
tial rights and “seriously affect[ ] the fairness, integrity, or
public reputation of judicial proceedings.” United States v.
Paladino, 401 F.3d 471, 481 (7th Cir. 2005) (quoting
Johnson v. United States, 520 U.S. 461, 466-67 (1997)).
This court recently set forth the parameters for analyzing
post-Booker sentencing claims, and held that not every
sentence imposed in violation of the Constitution will con-
No. 03-3006 9
stitute the sort of plain error that compels the conclusion
that a new sentencing hearing is required. Id. at 483.
Indeed, “if the [trial] judge would have imposed the same
sentence if he had thought the guidelines merely advisory . . .
and the sentence would be lawful under the post-Booker
regime, there is no prejudice to the defendant,” and thus no
cognizable plain error. Id. In some instances it will be clear
from the nature of the sentence imposed as well as from the
statements of the trial judge during post-trial proceedings
and the logical inferences drawn therefrom that, under the
post-Booker regime, the judge would have imposed the same
sentence whether or not he possessed greater discretion.
Lee, 399 F.3d at 866. However, in circumstances where this
court would be left “in a fog about what the district judge
would have done with additional discretion,” Lee, 399 F.3d
at 866, we have authorized a “limited remand to permit the
sentencing judge to determine whether he would (if required
to resentence) reimpose his original sentence.” Paladino, 401
F.3d at 484.
Cunningham’s sentence, as noted above, was increased by
three separate sentencing guidelines provisions and he
received: a two-level increase to the base offense for the
victim’s age and for using a computer to “solicit participa-
tion with a minor in sexually explicit conduct,” pursuant to
U.S.S.G. §§ 2G2.1(b)(3)(B)(ii) and 2G2.1(b)(1)(B); and
an upward departure from the applicable guidelines range
by the trial judge “equivalent [to] a four level increase in
the offense level,” for “relevant conduct, which includes not
only the conduct of the offense of conviction, which is the
production of a pornographic image of a 15 year old girl, but
on the repeated actual sexual contact; that is, molestation
and abuse . . . over the course of five months.” Because each
enhancement to Cunningham’s sentence requires a different
analysis under United States v. Paladino and United States
v. Lee, we will discuss each in turn.
10 No. 03-3006
1. Base Level Increase for the Victim’s Age and for the
Use of a Computer
Cunningham challenges the district court’s decision to
enhance his base offense level under the guidelines to take
into consideration the age of his victim, and Cunningham’s
use of a computer, while the government argues that
Cunningham waived such an argument.
While “forfeiture is the failure to make a timely assertion
of a right, waiver is the ‘intentional relinquishment or
abandonment of a known right.’ ” United States v. Olano,
507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304
U.S. 458, 464 (1938)). In addition, when such a knowing
waiver has been executed by a defendant, “it is not re-
viewable, even for plain error.” United States v. Penny, 60
F.3d 1257, 1261 (7th Cir. 1995); see also United States v.
Phillips, 239 F.3d 829, 839 (7th Cir. 2001) (“Where the legal
rule is waivable, a defendant who enters a valid waiver to
that right has no claim of error.”); United States v. Griffin,
84 F.3d 912, 924 (7th Cir. 1996) (“intentional relinquishment
or abandonment of a known right precludes [appellate
review].”) (internal citations omitted). In contrast, the mere
forfeiture of a right—the failure to timely assert a
right—does not preclude appellate review. See id.; Fed. R.
Crim. P. 52(b).
While it is true that Cunningham did challenge the pro-
priety of the base level enhancements in the trial court, he
failed to preserve this issue (or assert this right) on appeal.
The first time during appellate proceedings that
Cunningham challenged the base level increases that the
trial judge instituted for his victim’s age and for his use of
a computer to “solicit participation with a minor in sexually
explicit conduct,” was in supplemental briefing to this court
following the Supreme Court’s decision in Blakely v.
Washington. However, Cunningham had executed a waiver
of this issue long before the filing of his supplemental brief.
Specifically, in defendant-appellant’s opening brief he not
only confined his challenge to the four-level upward depar-
No. 03-3006 11
ture, but conceded that the district court properly increased
his base sentence for the use of a computer and for the age
of the victim.6 In addition, during oral argument,
Cunningham’s counsel specifically stated that: “We do not
contest the two-level adjustment for Amy Doe’s age, nor the
two-level increase for the use of the computer.” Such a clear,
deliberate and unambiguous concession is sufficient to
constitute a judicial admission and evinces an intentional
waiver of the right to challenge the court’s imposition of a
base offense level increase. See McCaskill v. SCI Mgmt.
Corp., 298 F.3d 677, 682 (7th Cir. 2002); McDonald v. General
Motors Corp., 110 F.3d 337, 340 (6th Cir. 1997); Crowe v.
Coleman, 113 F.3d 1536, 1542 (11th Cir. 1997).
Thus, because Cunningham waived his right to contest
the district court’s imposition of separate two-level enhance-
ments for the victim’s age and for Cunningham’s use of a
computer well before the Supreme Court’s decision in
United States v. Blakely, we need not consider whether they
were improper in light of that decision.
2. Upward Departure for Repeated Sexual Conduct
Cunningham also challenges the district court’s upward
departure and enhancement of his sentence in a manner
“equivalent [to] a four-level increase in the offense level.” As
noted above, the district court’s decision to depart in this
manner was based on the conduct at issue in this case,
specifically “the molestation and abuse . . . over the course
of five months.” In fashioning the upward departure, the
judge analogized Cunningham’s sexual molestation of Amy
Doe to relevant conduct under U.S.S.G. § 2G2.2, which
6
In fact, Cunningham’s brief states: “Specifically, the district court
found the base offense level to be 27 with adjustments for Amy
Doe’s age (+2) and the use of a computer (+2) resulting in a total
offense level of 31. The district court also properly determined
that Cunningham was in Criminal History Category I.”
12 No. 03-3006
provides for a five-level increase in the base sentence for a
defendant “engaged in a pattern [more than two instances]
of activity involving the sexual abuse or exploitation of a
minor.” In doing so the court concluded that evidence at
trial established, by a preponderance, that Cunningham
had sexual conduct with the fourteen-year-old child approx-
imately six times.
To the extent that he argues that the court’s upward
departure violates the Sixth Amendment, he is correct. See
Booker, 125 S. Ct. at 769. However, because this issue was
not timely raised our review is limited to plain error, and
under this standard Cunningham has failed to establish that
he is entitled to a remand for resentencing. In United States
v. Paladino, this court explained that a forfeited Booker
error does not lead to sentencing remand “if the judge would
have imposed the same sentence even if he had thought the
guidelines [were] merely advisory.” Paladino, 401 F.3d at
484.
The upward departure that the judge imposed on
Cunningham was not an enhancement mandated by the
guidelines. Instead, this was an exercise of discretion by the
judge, see Koon v. United States, 518 U.S. 81, 98 (1996),
which is the same sort of flexibility in sentencing that judges
now possess in a post-Booker scheme. See McReynolds v.
United States, 397 F.3d 479, 481 (7th Cir. 2005); United States
v. Fleming, 397 F.3d 95, 101 (2d Cir. 2005). As discussed in
Lee, an upward departure by a trial court from a properly
calculated range is one of the circumstances that would lead
us to conclude that any (inherent but unavoidable Booker)
error at sentencing by the judge did not affect a defendant’s
substantial rights, and does not warrant even a limited
remand. Lee, 399 F.3d at 867 (“By moving up, the judge
evinces not only a belief that discretion exists but also a
disposition to exercise it adversely to the accused. [A judge
predisposed to exercising his discretion adversely to the
defendant], knowing that Booker affords yet more latitude,
No. 03-3006 13
might impose a sentence higher still; knowledge that
freedom has increased would not induce the judge to reduce
the sentence.”)
Also, the fact that the district judge “linked” Cunningham’s
behavior to relative conduct under another provision of the
guidelines does not mean “that additional leeway might have
affected the sentence and would justify a remand under
Paladino to learn the district court’s disposition.” Lee, 399
F.3d at 867. This is evinced by the trial judge’s explanation
that “this is not a situation that the Sentencing Commission
could have adequately considered in developing the way
these different guidelines would apply in this kind of case.
The idea that a series of sexual acts of molestation and
abuse [of this nature] should have no aggravating affect is
very difficult, at least for this Judge, to fathom. It seems to
me they seriously aggravate the case.” With a statement
such as this on the record we are convinced that a remand
is not necessary to gain an understanding of the trial
judge’s “disposition.” Indeed, under the relevant conduct
section of the guidelines cited by the court, § 2G2.2(b)(4),
the district court very well could have imposed an upward
adjustment of five levels. The district judge’s failure to do
so may have been an oversight or may have been an exercise
in prudence considering there was no guideline provision
directly on point. Either way, there is no logical inference
whatsoever that can be drawn from the language in the
statements at sentencing that could lead to the conclusion
that the trial judge would have, if given additional discretion,
adjusted Cunningham’s sentence downward.
Finally, although the trial judge intimated during post-
trial proceedings that he may have been willing to impose
an even greater sentence on Cunningham, there was no in-
dication that, if given more leeway, the court would have
imposed a different or lighter sentence. See Lee, 399 F.3d at
866. This is evinced by the district judge’s decision to
impose a sentence at the top of the guideline range (calcu-
14 No. 03-3006
lated after the upward departure), as well as his statement
at sentencing that he chose the higher sentence because of
Cunningham’s “complete lack of remorse and the serious
consequences that this criminal conduct has had for the
victim.” Even more telling is the judge’s acknowledgment
that Cunningham came “before the court with no substan-
tial prior criminal history at all, [and fell] within Criminal
History Category I . . . a factor that work[ed] greatly [to
Cunningham’s] benefit, [but that] otherwise [the court
would] be getting up to the statutory maximum in no time
at all . . . .” These statements provide confirmation that, if
he was required to resentence Cunningham, the trial judge
would undoubtedly reimpose the original sentence or even
devise a longer period of confinement, but certainly would
not fashion a lesser punishment. Under such circumstances,
it cannot be said that Cunningham has been prejudiced.
Therefore, the only matter remaining for our review is to
assess the sentence the judge imposed for “reasonableness.”
As we noted in Paladino, “[u]nder the new sentencing regime
the judge must justify departing from the guidelines, and
the justification has to be reasonable.” Paladino, 401 F.3d
at 480. Here the judge departed upward because he thought
Cunningham’s sentence underappreciated his offense conduct
by not accounting for the “at least six” times he engaged in
illegal sexual activity with his victim. Accordingly, the
judge concluded that a four-level increase, which equated to
an additional 75 months in prison, was appropriate to
punish Cunningham for this conduct. Based on our review
of the record, we refuse to hold that this decision by the
judge was unreasonable.
III. CONCLUSION
The decision of the district court is
AFFIRMED.
No. 03-3006 15
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-19-05