United States v. Jordan, Kevin ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1296
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEVIN C. JORDAN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 03 CR 254—William C. Griesbach, Judge.
____________
ARGUED SEPTEMBER 14, 2005—DECIDED JANUARY 13, 2006
____________
Before EASTERBROOK, ROVNER, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Kevin Jordan, age 42, carried on
an illicit relationship with a 15-year-old Wisconsin girl he
seduced over the Internet and persuaded to live with him in
Ohio. He was eventually caught and pleaded guilty to two
federal crimes: traveling in interstate commerce to engage
in a sexual act with a juvenile and interstate stalking.
Although the applicable guidelines sentencing range was
110-137 months’ imprisonment, the district court imposed
the maximum sentence of 240 months.
Jordan argues on appeal that the sentence is unreason-
able. He also argues that application of the Supreme
Court’s remedial opinion in United States v. Booker,
2 No. 05-1296
125 S. Ct. 738 (2005), making the sentencing guidelines
advisory rather than mandatory, exposed him to a longer
sentence in violation of ex post facto principles implicit
in due process. We rejected the latter argument in United
States v. Jamison, 416 F.3d 538, 539 (7th Cir. 2005), and
see no reason to revisit that holding here. We affirm Jor-
dan’s sentence as reasonable and adequately explained by
the district court.
I. Background
Kevin Jordan, age 42 when he committed his crimes,
trolled Internet chat rooms seeking teenage girls with
whom he could establish sexual relationships. One of the
teenagers Jordan contacted online was K.W., a 15-year-old
girl with bipolar disorder who lived with her parents and
siblings in Green Bay, Wisconsin. Jordan arranged to
meet K.W. in person, and in October 2002 drove to Wis-
consin from his home in Mount Vernon, Ohio, for the
meeting. On the morning of October 14, 2002, K.W.’s
mother dropped her off at school; K.W. then disappeared for
six months. Jordan picked her up in Green Bay and drove
her first to Milwaukee, where they had sexual relations in
a hotel, and then to Mount Vernon, where she lived with
him and they carried on a sexual relationship. Jordan also
took pornographic pictures of K.W. and stored them on his
computer. During the six months K.W. spent with Jordan,
her family had no contact with her and no knowledge of her
whereabouts.
In April 2003 K.W. decided to move back to her family
in Wisconsin, so she arranged for her aunt to pick her up in
Ohio and return her home. She resumed living with her
family in Green Bay but kept in touch with Jordan via the
Internet, telephone, and U.S. mail. In June 2003 she moved
in with her aunt and uncle in Peshtigo, Wisconsin, and
attempted to cease all contact with Jordan. Yet Jordan
No. 05-1296 3
persisted in his attempts to communicate with K.W. and
also with her aunt. He sent them both letters and e-mails,
and during October 2003, he called their house over 100
times. During these calls, he would typically play music
or breathe into the phone, but on one occasion he told
K.W.’s aunt, “Bitch, I will get you.” On October 23, 2003,
using the screen name “Icdeadppl” [I see dead people], he e-
mailed K.W.’s aunt the following message: “This . . . world
will end soon and you and ppl [people] like you will end
too.” K.W.’s aunt took this as a threat. In late October
Jordan left Mount Vernon and drove to Wisconsin. Between
November 3 and 5, 2003, K.W.’s uncle saw Jordan driving
past his home in Peshtigo on at least five occasions.
Before arriving in Peshtigo, however, Jordan drove to
Davenport, Iowa, to see another teenage girl whom he
had met on the Internet. K.M. was 13 years old when
Jordan first contacted her online in April 2002 and 14 years
old when Jordan visited her in Davenport during late
October and early November 2003. Jordan had previously
sent K.M. cards, letters, and flowers. Forensic review of
Jordan’s computer revealed extensive e-mail correspon-
dence between them, including e-mails in which K.M. told
Jordan of her affection and love for him. Jordan’s computer
also contained several photographs of K.M. in a cheerlead-
ing uniform, one of her in a bikini, and one in which K.M.
had her shirt pulled up, exposing her breasts. K.M. later
told authorities that her contact with Jordan did not
escalate into a sexual relationship.
Jordan was finally arrested on November 6, 2003, after
passing out at a shopping mall near Peshtigo. A handgun
was found in the hotel room where he was staying. Upon
questioning, Jordan acknowledged a previous felony
conviction in Ohio for sexually abusing his daughter at least
twice monthly when she was between the ages of three and
five years old. Jordan said he did not think his conduct was
4 No. 05-1296
wrong because he believed his daughter enjoyed it.1 Jordan
also refused to acknowledge that his relationship with K.W.
was wrong, saying that he disagreed with “man’s law” that
made it a crime for an adult to have sex with an adolescent
girl.
Jordan was charged in a four-count indictment and
eventually pleaded guilty to two crimes: traveling in
interstate commerce for the purpose of engaging in a sexual
act with a person under the age of 18, contrary to 18 U.S.C.
§ 2423(b) (Count 1), and traveling in interstate commerce
with intent to kill, injure, harass, or intimidate another
person, contrary to 18 U.S.C. § 2261A(1) (Count 3). While
awaiting sentencing, Jordan wrote to his 14-year-old son
and asked him to try to contact a man from Ecuador whom
he had met in jail. Jordan told his son that the Ecuadorian
had told him that in his country the government would
have no problem with his relationship with K.W. Jordan
also said in the letter that he still loved K.W. and suggested
that he and K.W. could live together in Ecuador. Jordan
said his dream was to be with K.W. forever.
At sentencing the government presented evidence show-
ing that in addition to the child pornography Jordan created
with K.W., he also had hundreds of other images of child
pornography on his computer, most involving prepubescent
children engaging in sexual acts with adults or other
children. The government’s evidence also showed that
Jordan had communicated with at least 14 teenage girls via
online chat rooms and e-mail messages. Jordan focused his
online efforts on chat rooms that catered to teens or that
1
At Jordan’s sentencing hearing Special Agent Eric Szatkowski
of the Wisconsin Department of Justice, Division of Criminal
Investigation, testified about what Jordan told him following
his arrest. The district court credited Szatkowski’s testimony, and
Jordan does not challenge the district court’s factual findings on
appeal.
No. 05-1296 5
had sexually suggestive names. Two of the girls Jordan
contacted specifically identified themselves as being 14 and
15 years old. Jordan typically initiated his communications
with each of the girls with the following standard message:
Hi, I just saw you in the sex with you know group.
Thought I’d write and see what happens. Do you
happen to talk with older guys? I’ll let you know that
I’m 43. I do have a profile at Yahoo. I live in Ohio. I do
prefer younger girls. You are so much easier to get
along with and relate to. I have been in a relationship
with a girl MUCH younger than me. I’ll also tell you
that we met through the Internet and met in person
soon after. Where are you from?
Special Agent Eric Szatkowski, an experienced investigator
of online child exploitation, testified that Jordan referred to
his previous relationship with a much younger girl as a
grooming technique designed to lower a potential victim’s
defenses by making the intergenerational relationship seem
normal and acceptable.
The record before the district court also included Jordan’s
mental health competency evaluation, which confirmed that
Jordan continued to believe there was nothing wrong with
“an adult male having a sexual relationship with a teenage
female” and that “the laws against this activity were
completely unnecessary and unfair.” Criminal records from
Ohio showed that Jordan was ordered to participate in sex
offender treatment while on probation for molesting his
daughter. The records indicated that he completed Phase I
of the program and entered Phase II, though it is unclear
whether he finished Phase II. The mental health evaluation
reflects that Jordan spoke to evaluators “in sarcastic and
disparaging terms about his past experiences in psychother-
apy.” The report concludes with a diagnosis of pedophilia.
Jordan’s advisory sentencing guidelines range was 110-
137 months’ imprisonment. The district court instead
6 No. 05-1296
imposed the maximum term of 240 months’ imprisonment:
180 months on Count 1 and 60 months consecutive on
Count 3. Jordan appeals his sentence.
II. Discussion
We review sentences for reasonableness based on the
sentencing factors in 18 U.S.C. § 3553(a). Booker, 125 S. Ct.
at 765-66. A sentence within a properly calculated advisory
guidelines range is entitled to a rebuttable presumption of
reasonableness. United States v. Mykytiuk, 415 F.3d 606,
608 (7th Cir. 2005). Sentences that vary from the advisory
guidelines range are reasonable as long as the district judge
offers adequate justification consistent with the sentencing
factors in § 3553(a). United States v. Johnson, 427 F.3d 423,
426-27 (7th Cir. 2005) (citing United States v. Dean, 414
F.3d 725, 729 (7th Cir. 2005)). A district judge need not
“ ‘rehearse on the record all of the considerations that 18
U.S.C. § 3553(a) lists; it is enough to calculate the [guide-
lines] range accurately and explain why (if the sentence lies
outside it) this defendant deserves more or less.’ ” Dean, 414
F.3d at 729 (quoting United States v. George, 403 F.3d 470,
472-73 (7th Cir. 2005)). The farther a sentence varies from
the advisory range, the more compelling the judge’s reasons
must be. Dean, 414 F.3d at 729.
Here, the district court imposed the maximum sentence
on each count and ordered the terms to run consecutively.
This sentence exceeded the top of the guidelines range
by 103 months. By any measure, the sentence represents a
significant upward variance from the advisory guide-
lines range, so the district court’s reasons must be quite
compelling to satisfy reasonableness review. They are. The
district judge described on the record and at length the
many facts and circumstances of Jordan’s case that
were pertinent to his evaluation of § 3553(a) factors,
with particular emphasis on the severity of Jordan’s
offenses and his risk of recidivism. The judge explained in
No. 05-1296 7
considerable detail why the 240-month sentence was
warranted. We count at least ten specific areas of concern to
the district court:
1. Jordan’s history of “trolling” the Internet to solicit
adolescent girls for sex;
2. The prolonged duration and pronounced manipulation
that characterized Jordan’s six-month sexual relation-
ship with 15-year-old K.W.;
3. Jordan’s prior and repeated sexual abuse of his
own daughter when she was three to five years old;
4. Jordan’s professed disagreement with “man’s law”
that prohibited adult men from having sex with
teenage girls, and his belief that there was nothing
wrong with his sexual activity with his daughter;
5. Jordan’s diagnosis of pedophilia and the ineffective-
ness of previous sex offender therapy;
6. The particularly difficult trauma suffered by the
victim’s family because of her lengthy disappearance;
7. Jordan’s threats of violence against the victim’s
family;
8. Jordan’s creation and possession of child pornography
(crimes for which he was not separately charged);
9. Jordan’s suggestion to his son that when he got out of
jail, he could reunite with K.W. and live with her in
Ecuador; and
10. The fact that Jordan brought a gun with him when he
came to Wisconsin to stalk K.W. and her family.
We have no difficulty affirming the district judge’s
conclusion that Jordan’s conduct and character called
for the maximum sentence in light of the sentencing criteria
specified in § 3553(a). The statute directs the sentencing
court to consider “the nature and circumstances of the
8 No. 05-1296
offense” and “the need for the sentence imposed . . . to
reflect the seriousness of the offense . . . and to provide just
punishment.” See 18 U.S.C. § 3553(a)(1), (a)(2)(A). Jordan’s
offenses can only be considered extremely serious, aggra-
vated by the following circumstances identified by the
district court: Jordan’s online seduction and subsequent
manipulation of K.W., a vulnerable 15-year-old; the ex-
tended duration of his six-month sexual relationship with
her; the heightened trauma suffered by her family due to
her prolonged disappearance; Jordan’s creation of pornogra-
phy with her; and his repeated threats of violence and
possession of gun while stalking her family.
The statute also directs the court to consider “the his-
tory and characteristics of the defendant” and “the need
for the sentence imposed . . . to protect the public from
further crimes of the defendant.” See 18 U.S.C. § 3553(a)(1),
(a)(2)(C). Jordan plainly poses a heightened risk of recidi-
vism based on the following facts noted by the district court:
his “trolling” of the Internet looking for teenage girls for sex
and his predatory contact with girls other than the present
victim; his previous conviction for molesting his prepubes-
cent daughter over a two-year period; his expressed dis-
agreement with “man’s law” that prohibits adult men from
having sexual relationships with adolescent girls; his
diagnosis of pedophilia and the ineffectiveness of prior sex
offender treatment; his possession of child pornography;
and his comments to his son about wanting to resume his
relationship with K.W. and move with her to Ecuador.
Finally (as is pertinent here), the statute specifies that
the court may consider the need for general deterrence
and respect for the law. See 18 U.S.C. § 3553(a)(2)(A),
(a)(2)(B) (“[t]he court . . . shall consider . . . the need for the
sentence imposed . . . to promote respect for the law. . .
[and] . . . to afford adequate deterrence to criminal con-
duct”). The judge did so: “I think a severe sentence is
No. 05-1296 9
necessary to send a very strong message that this conduct is
outrageous, that this conduct is wrong, that this conduct
cannot be tolerated in a civilized society that cares for its
children.” Jordan’s 240-month sentence was adequately
explained by the district court, was sufficiently linked to
appropriate § 3553(a) sentencing factors, and is reasonable.
Jordan argues that his sentence is unreasonable be-
cause the Sentencing Commission, prodded by Congress,
has repeatedly amended the guidelines to boost sentence
ranges for crimes involving sexual abuse and exploitation of
minors. See generally UNITED STATES SENTENCING COMMIS-
SION, Fifteen Years of Guidelines Sentencing (Nov. 2004), ch.
2, sec. D, pt. 6, http://www.ussc.gov/15_year/ 15year.htm.
He suggests that where the guidelines ranges have been
periodically increased, any sentence above the range should
be subjected to some form of heightened reasonableness
review. This argument conflicts with Booker itself and with
post-Booker case law in this circuit.
The remedial opinion in Booker contemplated that the
Sentencing Commission would continue to collect data
and modify the guidelines, even though they are no longer
mandatory. Booker, 125 S. Ct. at 766. We have held that
a sentence within a properly calculated guidelines range
is presumed reasonable, Mykytiuk, 415 F.3d at 608, but
there is no presumption of unreasonableness that at-
taches to a sentence that varies from the range. A sentence
outside the range need only be adequately explained
and consistent with § 3553(a) factors. Dean, 414 F.3d at
729; Johnson, 427 F.3d at 426-27. A sentence that exceeds
the applicable advisory guidelines range is not suspect—
and certainly not categorically unreasonable—merely
because the ranges have been amended upward over time.
Jordan makes two additional arguments we need not fully
engage here. First, he says he was entitled to be sentenced
under the binding guidelines regime in effect at the time he
10 No. 05-1296
committed his crimes, rather than the advisory scheme
created by the Supreme Court’s remedial opinion in Booker,
because the effect of that opinion was to expose him to a
longer sentence in violation of ex post facto limitations
inherent in due process. See Rogers v. Tennessee, 532 U.S.
451, 456 (2001). We rejected this argument in United States
v. Jamison, 416 F.3d at 539, released just as briefing was
completed in this case. Jordan has made no attempt to
persuade us, in his citation to supplemental authority or at
oral argument, that Jamison ought to be overruled. We
decline to revisit it.
Finally, Jordan argues that because hypothetical future
defendants could commit more egregious forms of the
same crimes he committed, the theory of marginal deter-
rence undermines the reasonableness of the maximum
sentence imposed on him. See United States v. Newsom, 402
F.3d 780, 785-86 (7th Cir. 2005). But Jordan waived this
argument by raising it for the first time in his reply brief.
See, e.g., United States v. Stevens, 380 F.3d 1021, 1025 (7th
Cir. 2004) (citing United States v. Alvarez-Martinez, 286
F.3d 470, 475 (7th Cir. 2002)).
AFFIRMED.
No. 05-1296 11
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-13-06