United States v. Philip Sebolt ( 2006 )


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  •                              In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 04-2588
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    PHILIP M. SEBOLT,
    Defendant-Appellant.
    ____________
    Appeal from the United States District Court
    for the Northern District of Illinois, Eastern Division.
    No. 02 CR 648—Ronald A. Guzman, Judge.
    ____________
    ARGUED MARCH 29, 2006—DECIDED AUGUST 21, 2006
    ____________
    Before BAUER, KANNE, and SYKES, Circuit Judges.
    KANNE, Circuit Judge. Philip Sebolt was charged with
    using his computer to commit various federal crimes
    involving child pornography. At trial, a host of “other acts”
    evidence was admitted, some of which Sebolt contested, and
    some of which he did not. After Sebolt was convicted on all
    counts, he was sentenced to 360 months’ imprisonment.
    Sebolt appeals his convictions and his sentence. We affirm
    the convictions and order a limited remand of his sentence
    pursuant to United States v. Paladino, 
    401 F.3d 471
    , 481-84
    (7th Cir. 2005).
    2                                               No. 04-2588
    I. HISTORY
    On March 14, 2002, FBI Special Agent Mark Miller of the
    Baltimore field office was in the course of his investigation
    into the online trading of child pornography. Miller logged
    on to two suspicious chat rooms, one named, “preteen666,”
    and the other, “preteen411.” In the “preteen666” chat room,
    Miller noticed that a person using the screen name
    “Blah35674” was running a file server and had pictures of
    young boys and girls available.
    Miller connected to Blah35674’s file server, which utilized
    a ratio program of 1:3. Essentially, the server would give a
    visitor three pictures for every one picture the visitor
    contributed. Miller uploaded his own innocuous files, which
    enabled him to download 53 images of child pornography
    from Blah35674’s file server. Specifically, Miller uploaded
    an encrypted photograph onto the server and in return, the
    server sent him a picture of child pornography entitled
    “Helgav 044.jpg.” To request this photograph, Miller had
    typed the command “Get Helgav 044.jpg.” Before the server
    sent Miller the picture, it sent a message that the picture
    was “on its way.”
    At another time, Miller requested a file entitled “baby
    fuck 14.JPG” by typing “Get baby fuck14.JPG.” In response,
    Miller received the message “Failed to send baby fuck
    14.JPG.” Miller then requested a file named “Cbaby 2.MPG”
    by typing “get Cbaby 2.MPG.” In response, Miller received
    a message that the file was “on its way.”
    Miller testified that the server displayed a banner
    scrolling across an internet page, which stated:
    Upload Boy Baby Pics! Upload Boy Baby Pics!
    Upload Boy Baby Pics! Upload Boy Baby Pics!
    Upload Boy Baby Pics! I’m also looking for a text
    file for someone to msg me, on tips/tactics/advice on
    how to molest kids. I am not out to hurt or kidnap
    a kid. Just fun loving molesting. I have a web cam
    No. 04-2588                                                3
    and am willing to produce pics if I can successfully
    molest a kid/baby. Any help would be nice. :)
    Miller contacted his FBI counterparts in Chicago. They
    determined that the internet protocol address associated
    with the screen name Blah35674 was registered through an
    internet service provider to Janet Sebolt in Bensen-
    ville, Illinois. The FBI, along with members of the Cook
    County Sheriff’s Department and Bensenville Police
    Department, executed a federal search warrant for Janet
    Sebolt’s address on July 1, 2002. After gaining entry to the
    residence, the officers found Janet’s son, Philip Sebolt, in
    his bedroom deleting files on his computer. Officers un-
    plugged the computer and began to search the residence.
    Two officers interviewed Sebolt at his residence after
    orally advising him of his Miranda rights. Sebolt indicated
    that he understood his rights and would answer questions.
    Sebolt admitted that he was running a file server from his
    personal computer in his bedroom and that the server’s
    purpose was to trade child pornography. Sebolt conceded
    that he used the screen name “Blah” followed by num-
    bers when he traded child pornography and that he
    posted the aforementioned advertisement because he had a
    sexual attraction to young boys. Sebolt then identified
    specific items of child pornography, acknowledged that they
    were of real children, and estimated the children’s ages.
    When asked if he had ever molested young boys, Sebolt
    stated that he had sexually assaulted a relative.
    After the interview concluded, the officers took Sebolt
    to an FBI field office for processing. At the field office,
    Sebolt signed a written waiver of his Miranda rights and
    provided a handwritten statement. In the statement, Sebolt
    admitted to using his computer to possess child pornogra-
    phy and to distribute it over the internet. Sebolt confessed
    to printing several of these images, which he kept under his
    bed and used when masturbating. Sebolt also stated that he
    engaged in sexual relations with a 16-year-old girl in
    4                                               No. 04-2588
    Wisconsin whom he met on the internet, and that he had
    molested a young male relative several times (the same
    victim as Sebolt’s oral confession).
    The search of Sebolt’s computer revealed more than
    27,000 images of child pornography. Sebolt’s computer
    also contained transcripts of online conversations Sebolt
    had with respondents to his advertisement requesting
    advice on molesting children. Five of these chats were found
    in a file labeled “how to molest,” with one in a file labeled
    “personal,” and another in a file labeled “kp.” The online
    conversations centered on Sebolt’s attempts to molest
    children without getting caught by law enforcement.
    Officers also found on Sebolt’s computer logs the com-
    puter had generated detailing the server’s interactions with
    online visitors. The logs showed guests’ requests for certain
    files and the server’s responses. For instance, one of the
    logs showed that on June 25, 2002, someone using the
    screen name Gustave Premier (“Premier”) sent files to
    Sebolt’s server and requested in exchange files containing
    child pornography, including one entitled “hel-an09.jpg.”
    After Premier requested “hel-an09.jpg,” Sebolt’s computer
    responded that “hel-an09.jpg is on its way.” Officers also
    recovered approximately 250 pictures containing child
    pornography and a pair of boys’ Pokemon underwear from
    beneath Sebolt’s bed.
    On March 26, 2003, a federal grand jury returned a four-
    count second superseding indictment charging Sebolt with
    violating various federal child pornography laws. Count 1
    charged Sebolt with knowingly possessing child pornog-
    raphy. Counts 2 and 3 alleged Sebolt transported child
    pornography, namely computer images entitled
    “helgave049.jpg” and “hel-an09.jpg,” for Counts 2 and 3,
    respectively. Count 4 charged Sebolt with advertising
    child pornography online.
    No. 04-2588                                                5
    Sebolt filed a pretrial motion in limine objecting to the
    introduction of evidence relating to his molestation of his
    young male relative. The motion in limine was denied.
    During the four-day jury trial, the government repeatedly
    referred to Sebolt’s molestation of his relative. The gov-
    ernment also made repeated reference to his trip to Wiscon-
    sin to have sex with a minor female, his failed attempts to
    molest other children, and the underwear under his bed.
    Sebolt made no objections at trial to the introduction into
    evidence of any of these other acts that occurred in addition
    to the acts of molestation that involved his relative.
    Sebolt’s strategy at trial was to admit to collecting child
    pornography but to deny distribution and advertisement.
    Sebolt proclaimed that his role was passive and that the
    logs were inaccurate. The jury disagreed and returned
    guilty verdicts against Sebolt on all counts.
    On March 3, 2004, the district court held a sentencing
    hearing. The court applied the sentencing guidelines and
    found that several enhancements applied. The court
    calculated a criminal history category of I, and an offense
    level of 40, resulting in a sentencing range of 292 to 365
    months. The court sentenced Sebolt to the statutory
    maximum prison term for each count: 60 months on Count
    1, 120 months each on Counts 2 and 3, and 240 months on
    Count 4. The sentences on Counts 2 and 3 were to run
    concurrently with each other and consecutive to the sen-
    tence on Count 4. The sentence on Count 1 was to run
    concurrently with the other counts. The result was a
    sentence of 360 months’ imprisonment.
    Sebolt appeals his convictions and sentence.
    II. ANALYSIS
    A. Sufficiency of the Evidence
    Sebolt argues there was insufficient evidence to support
    his conviction on Count 3, which alleged Sebolt “knowingly
    6                                                No. 04-2588
    transported and shipped child pornography, namely, a
    computer image entitled ‘hel-an09.jpg,’ in interstate
    commerce by means of a computer.”
    In challenging the sufficiency of the evidence, Sebolt
    “bears a heavy burden and faces a nearly insurmountable
    hurdle.” United States v. Seawood, 
    172 F.3d 986
    , 988 (7th
    Cir. 1999) (citations omitted). The jury verdict is entitled to
    great deference, and we will uphold it if, viewing all facts
    and making all inferences in the prosecution’s favor, “ ‘any
    rational trier of fact could have found the essential ele-
    ments of the crime beyond a reasonable doubt.’ ” United
    States v. Hicks, 
    368 F.3d 801
    , 804-05 (7th Cir. 2004)
    (quoting United States v. Gardner, 
    238 F.3d 878
    , 879 (7th
    Cir. 2001)). We will overturn a conviction “only if the record
    is devoid of evidence from which a reasonable jury could
    find guilt beyond a reasonable doubt.” United States v.
    Curtis, 
    324 F.3d 501
    , 505 (7th Cir. 2003) (citing United
    States v. Menting, 
    166 F.3d 923
    , 928 (7th Cir. 1999)).
    To prove Sebolt guilty beyond a reasonable doubt on
    Count 3, the government was required to prove he trans-
    ported the picture entitled “hel-an09.jpg” in interstate
    commerce. See 18 U.S.C. § 2252A(a)(1). Sebolt argues that
    although his computer may have generated a message
    that the image was “on its way” to Premier, there is no
    evidence that the image was ever sent because there is no
    evidence that the file was received.
    Special Agent Miller testified that for every one of the 53
    images he obtained from Sebolt’s file server, he previously
    received a message that the file was “on its way.” The
    reasonable inference, therefore, is that because the log
    contained a message that “hel-an09.jpg” was on its way
    to Premier, it was in fact transported to Premier.
    Sebolt points to a failed transmission in which Miller
    requested a file by typing “get Cbaby 2.MPG” and received
    a message that the file was “on its way” but did not receive
    No. 04-2588                                                7
    this file. Sebolt argues that the incomplete transmission
    calls into question the accuracy of the log and negates the
    inference. But Sebolt does not mention Miller’s testimony
    that his computer was disconnected from the internet one
    minute after receiving the message that “Cbaby 2.mpg” was
    “on its way,” before which, a jury could reasonably conclude,
    the file could have been received. Nor does Sebolt discuss
    the 21-page log Sebolt’s server generated when Premier
    visited, showing Premier exchanged numerous images with
    Sebolt’s server. The message that the file “hel-an09.jpg” was
    “on its way” appeared on page 14, and there was no subse-
    quent indication in the log that the file was not received.
    Because Miller testified that there were 53 instances
    in which Sebolt’s server generated the message that a file
    was “on its way” and sent the image, a jury could have
    reasonably inferred that Sebolt’s server sent “hel-an09.jpg”
    when the log said this file was “on its way.” The 54th
    instance, in which the message was generated but the file
    was not sent, was easily explained and sufficiently dis-
    tinct so as not to turn a reasonable inference into an
    unreasonable one. Therefore, there was sufficient evi-
    dence to convict Sebolt on Count 3.
    B. Relevance and Fairness of the Evidence
    Next, Sebolt argues it violated Rules 403 and 404(b) of the
    Federal Rules of Evidence for the jury to have heard
    testimony that Sebolt (1) molested a young male relative;
    (2) drove to Wisconsin intending to have sex with a minor
    female; (3) kept a pair of boys’ Pokemon underwear under
    his bed; and (4) discussed other thoughts and attempts to
    molest children.
    Rule 404(b) prohibits the use of other acts evidence which
    tend to prove the defective character of a defendant “and
    likely therefore to have committed the crime of which he is
    accused in the present case, or perhaps some other, unde-
    8                                                 No. 04-2588
    tected crime for which he should be punished.” Paladino,
    
    401 F.3d at 474-75
    . However, Rule 404(b) does not exclude
    such evidence if it is relevant to certain other issues,
    specifically the defendant’s “motive, opportunity, intent,
    preparation, plan, knowledge, identity, or absence of
    mistake or accident.” Fed. R. Evid. 404(b); United States v.
    Hale, 
    448 F.3d 971
    , 985 (7th Cir. 2006) (per curiam) (citing
    United States v. Macedo, 
    406 F.3d 778
    , 792 (7th Cir. 2005)).
    Even if relevant, however, this evidence may be excluded as
    unduly prejudicial if it would cause the jury to ground its
    verdict on a ground other than the evidence. Fed. R. Evid.
    403; United States v. Whitlow, 
    381 F.3d 679
    , 686 (7th Cir.
    2004).
    The government admits Sebolt’s objection in his pretrial
    motion in limine to the admission of the evidence that he
    molested his relative, coupled with the district court’s
    definitive denial, sufficiently preserved this issue for
    appeal. See Wilson v. Williams, 
    182 F.3d 562
    , 566 (7th Cir.
    1999). We review the admission of the molestations for
    abuse of discretion. See United States v. Rangel, 
    350 F.3d 648
    , 650-51 (7th Cir. 2003) (citation omitted). Owing special
    deference to the district court’s decision, we will not over-
    turn it unless no reasonable person could agree with it.
    United States v. Toro, 
    359 F.3d 879
    , 884-85 (7th Cir. 2004)
    (citing United States v. Thomas, 
    321 F.3d 627
    , 630 (7th Cir.
    2003)).
    However, Sebolt made no objection to the admission of
    other evidence he now claims to have been wrongly admit-
    ted. We review the admission of that evidence for plain
    error. Fed. R. Crim. P. 52(b); United States v. Pree, 
    408 F.3d 855
    , 868 (7th Cir. 2005) (citations omitted). “Under this
    standard of review, we must find that: (1) an error occurred;
    (2) the error was ‘plain,’ that is, it was clear or obvious; and
    (3) the error affected the outcome of the district court
    proceedings.” United States v. Shearer, 
    379 F.3d 453
    , 456
    (7th Cir. 2004) (citing United States v. Olano, 
    507 U.S. 725
    ,
    No. 04-2588                                                   9
    731-35 (1993)). If so, then it is within our discretion to
    rectify forfeited errors which seriously affect “the fairness,
    integrity, or public reputation of the proceedings.” United
    States v. Henningsen, 
    402 F.3d 748
    , 750 (7th Cir. 2005)
    (citations omitted).
    Under either standard of review, we employ a four-part
    test to determine whether prior conduct is admissible under
    Rule 404(b) and will find no error if:
    (1) the evidence is directed toward establishing a
    matter in issue other than the defendant’s propen-
    sity to commit the crime charged; (2) the evidence
    shows that the other act is similar enough and close
    enough in time to be relevant to the matter in
    issue; (3) the evidence is sufficient to support a jury
    finding that the defendant committed the similar
    act; and (4) the probative value of the evidence is
    not substantially outweighed by the danger of
    unfair prejudice.
    United States v. Price, 
    418 F.3d 771
    , 783-84 (7th Cir. 2005)
    (quoting United States v. Asher, 
    178 F.3d 486
    , 492 (7th Cir.
    1999)).
    The government made several references in all phases
    of the trial to Sebolt’s admission that he had molested his
    relative. One theory of the government’s case was that
    Sebolt had molested this boy for some time until the
    child had grown too old. Out of potential victims, the
    government hypothesized, Sebolt sought to sharpen his
    predatory skills so as to find new victims. The government
    claimed this was Sebolt’s motive for posting his online
    advertisement, i.e., the conduct alleged in Count 4.
    10                                                 No. 04-2588
    Sebolt dissects the statutory elements of Count 41 and
    argues the prior molestations do not tend to prove any of
    them. We have rejected this rationale because Rule 404(b)
    explicitly makes motive relevant, and establishing motive
    tends to prove a crime was committed. See United States v.
    Lloyd, 
    71 F.3d 1256
    , 1264 (7th Cir. 1995) (“Although the
    defendant argues that motive was not one of the elements
    the government was required to prove in order to gain a
    conviction, motive to possess a firearm was ‘relevant to the
    matter in issue.’ ” (quoting United States v. Wilson, 
    31 F.3d 510
    , 514 (7th Cir. 1994))). Prior instances of sexual miscon-
    duct with a child victim may establish a defendant’s sexual
    interest in children and thereby serve as evidence of the
    defendant’s motive to commit a charged offense involving
    the sexual exploitation of children. See United States v.
    Cunningham, 
    103 F.3d 553
    , 556 (7th Cir. 1996). It also may
    serve to identify the defendant to the crime. See 
    id.
     We
    accept the government’s argument that the evidence of
    Sebolt’s prior molestation of his young male relative was
    admissible for the permitted purposes of proving motive and
    identity. Sebolt’s own words to that effect could not have
    been more clear.
    Nevertheless, the molestations must have “occur[red]
    close enough in time to the crime[s] charged to be relevant
    to [Sebolt’s motive].” See Lloyd, 
    71 F.3d at 1264
     (citation
    omitted). When Sebolt allegedly committed the charged
    offenses, approximately two years had passed since he
    last molested his relative. The two-year period is significant
    to proving Sebolt’s motive because Sebolt considered his
    inactivity to be a dry spell. The cessation of the molesta-
    tions was the starting point.
    1
    
    18 U.S.C. § 2251
    (d)(1)(A). Count 4 actually alleged a violation
    of 
    18 U.S.C. § 2251
    (c)(1)(A) (emphasis added). The statute
    was amended and re-codified shortly after the final charging
    instrument was issued. See Pub. L. No. 108-21, §506(2) (2003).
    No. 04-2588                                                11
    Sebolt does not dispute the third requirement of admis-
    sibility was met because his own admissions—his confession
    and his chat records—were the source of the molestation
    evidence. See United States v. Joseph, 
    310 F.3d 975
    , 978-79
    (7th Cir. 2002).
    The fourth consideration is whether the probative value
    of the evidence was substantially outweighed by the danger
    of unfair prejudice. As discussed, Sebolt’s history of moles-
    tation provided strong evidence of his motive to advertise
    child pornography online. Sebolt correctly states that
    evidence of child molestation is highly prejudicial. However
    it is not unfairly prejudicial in Sebolt’s case. A limiting
    instruction was given regarding other bad acts evidence,
    and the government did not overstep its bounds in this
    regard.
    The motive to molest children does not completely overlap
    with the propensity to possess, transport, or advertise child
    pornography. See Cunningham, 
    103 F.3d at 556-57
    . If it did,
    then there would be a greater chance that evidence of
    molestations introduced in this case was used to prove
    propensity. (Indeed, the motive to molest children would
    completely overlap only with the propensity to molest
    children.) And the conceptual gap between molestation and
    child pornography is not so wide as to “induce the jury to
    decide the case on an improper basis . . . rather than on the
    evidence presented.” United States v. Thomas, 
    321 F.3d 627
    ,
    630 (7th Cir. 2004) (quotations and citations omitted). In
    other words, the molestations and the evidence supporting
    the statutory criminal elements were similar in character,
    i.e., establishing Sebolt’s sexually deviant mental state, so
    there is no reason to suspect the jury was inflamed by the
    admission of the molestations. The prejudicial effect did not
    substantially outweigh the probative value, and the moles-
    tations were appropriately admitted.
    As noted, Sebolt did not object at trial to the admission of
    other evidence which he now contests was inappropriately
    admitted for the same reasons as the molestations. Sebolt
    12                                                 No. 04-2588
    takes issue with the admission of evidence from his hand-
    written confession that two weeks prior to his arrest, he
    drove to Wisconsin to have sex with a 16-year-old girl whom
    he first met online. Sebolt’s sexual misconduct resulting
    from an online relationship is relevant to his motive
    because it confirms he was indeed looking for “some fun
    loving molesting.” Beyond alleging (incorrectly) this evi-
    dence is irrelevant, Sebolt makes no credible argument, and
    we need not discuss what easily falls within the remaining
    confines of Rule 404(b).
    Nor was it error to admit other portions of Sebolt’s online
    chats, in which he discussed his past experiences with other
    molesters. All of the acts—the details of which are insig-
    nificant—involved Sebolt’s recent attempts, missed opportu-
    nities, and potential future opportunities to molest children.
    These acts are relevant to his motive as well, and were
    properly admitted without Sebolt’s objection.
    On the other hand, the admission of the underwear gives
    us pause. During the search, officers found a pair of young
    boys’ Pokemon underwear under Sebolt’s bed. When
    confronted with the underwear, Sebolt stated that he had
    found it on a sidewalk near his residence and that he put it
    on his face when masturbating. Similar to Sebolt’s molest-
    ing activities, Sebolt’s use of the underwear demonstrates
    his sexual interest in young boys and therefore is relevant
    to his motive.2
    2
    We need not discuss the government’s theory of relevance
    that because Sebolt knew the underwear was under his bed and it
    was found there, it proves Sebolt’s knowledge that the child
    pornography was under his bed. The evidentiary source of Sebolt’s
    knowledge of the underwear was the statement he made to
    officers during the search of his bedroom, at which point he also
    admitted knowledge of the child pornography. So the underwear
    had no independent probative value as to the presence of pornog-
    raphy.
    No. 04-2588                                               13
    But what is troubling is that, unlike the other evidence of
    Sebolt’s motive which was gleaned from a computer log and
    a written confession and was read into the record, the
    actual physical underwear was introduced into evidence. In
    his interview, Sebolt had confessed to his use of the under-
    wear, and he did not later dispute it. Because this point was
    well established and unrebutted; there was no probative
    value for admitting the physical evidence of his motive.
    Little imagination is necessary to conclude the underwear
    was unfairly prejudicial.
    Even if the underwear’s probative value was substantially
    outweighed by its prejudicial effect, however, Sebolt does
    not show that he “probably would have been acquitted but
    for the erroneously admitted evidence.” United States v.
    Wynn, 
    845 F.2d 1439
    , 1443 (7th Cir. 1988) (citations
    omitted); United States v. Wilson, 
    966 F.2d 243
    , 246-47 (7th
    Cir. 1992) (finding no plain error because “[t]he record is
    replete with evidence from which the jury could convict [the
    defendant]”). Nevertheless the reason why the underwear
    had no probative value—the numerous other evidentiary
    sources from which the jury could have convicted
    Sebolt—also warrants against reversal. In particular,
    Sebolt’s handwritten confession and file server log provided
    overwhelming evidence of his guilt.
    C. Testimony About Pornographer
    A British detective testified about the real life events
    depicted by “hel-an09.jpg” and “helgave049.jpg.” A British
    man abused his stepchildren and one of their friends, and
    the man posted pictures of the abuse on the internet. After
    he was convicted, the detective visited him in prison. The
    man verified the authenticity of several images, including
    “hel-an09.jpg” and “helgave049.jpg,” and the identities of
    the children in them. Sebolt argues the jury heard testi-
    mony that another individual who had possessed the
    14                                              No. 04-2588
    same pictures at issue in Sebolt’s case had already been
    convicted by a court. Again, Sebolt did not object, and, as
    previously discussed, we review for plain error only.
    Putting to one side the issue of plain error, Sebolt was
    in no way prejudiced by the exposure of the jury to the other
    man’s conviction. In order to obtain reversal, Sebolt must
    show that the admission of the contested evidence affected
    his substantial rights. See Pree, 
    408 F.3d at 868
     (citations
    omitted). The only prejudicial effect we can imagine (for
    Sebolt has not mentioned any), would be for the jury to have
    relied upon the conviction, rather than the evidence, to
    conclude the images on the pictures constituted child
    pornography within the meaning of the charged offenses.
    There is no dispute about the lurid content of the photo-
    graphs and images the jury viewed. The evidence proving
    Sebolt possessed child pornography was so overwhelming,
    at closing arguments, Sebolt practically admitted to the
    possession charge.
    D. Sebolt’s Sentence
    Sebolt does not take issue with the district court’s legal
    conclusions in calculating his sentence under the Guide-
    lines. He makes a general objection to the factual basis of
    these results, however. Realizing his Crawford claim was
    doomed from the start, see United States v. Roche, 
    415 F.3d 614
    , 618 (7th Cir. 2005), Sebolt withdrew it. Now Sebolt
    challenges the use of hearsay, on due process grounds, at
    his sentencing hearing at which an FBI special agent
    testified to the statements made by people he encountered
    during his investigation, namely Sebolt’s girlfriend and
    other alleged victims. The statements, to which Sebolt did
    not object, asserted that Sebolt molested young neighbors
    and a child in a public restroom. Even if this testimony
    were stricken, however, the Guideline calculations would
    have been no different. The trial record provides ample
    No. 04-2588                                                15
    support for Sebolt’s sentencing enhancements. Without a
    discernible deprivation, further discussion is unwarranted.
    The district judge imposed Sebolt’s sentence prior to the
    Supreme Court’s decision in United States v. Booker, 
    543 U.S. 220
     (2005), and both sides agree it did so under the er-
    roneous impression that the Guidelines were mandatory.
    See United States v. Cunningham, 
    405 F.3d 497
    , 504-05 (7th
    Cir. 2005). Although Sebolt did not object at the time, he
    does now with the benefit of hindsight, and we review for
    plain error. United States v. Johnson, 
    427 F.3d 423
    , 429
    (7th Cir. 2005) (citing Paladino, 
    401 F.3d at 481-84
    ).
    The district judge considered each enhancement offered
    by the government and objected to by Sebolt. The judge
    overruled most, but not all, of Sebolt’s objections to the
    enhancements. The judge thoroughly discussed his rea-
    sons to ensure that the sentencing range reflected the
    seriousness of Sebolt’s conduct and the sheer volume of
    pornography he possessed, which almost doubled his
    sentencing range. The judge sentenced Sebolt a mere five
    months fewer than the top of that range. It is unlikely
    the judge would impose a lesser sentence on Sebolt with the
    understanding that the Guidelines are advisory, but these
    circumstances are mere “indicators rather than assur-
    ances.” See United States v. Lee, 
    399 F.3d 864
    , 866-67 (7th
    Cir. 2005). Because there is room to speculate, the better
    course is to ask the district judge. We therefore will order a
    limited remand pursuant to the procedure set forth in
    Paladino, 
    401 F.3d at 481-84
    , to inquire of the sentencing
    judge whether, if given the opportunity to resentence, he
    would impose the original sentence.
    III. CONCLUSION
    For the foregoing reasons, we AFFIRM Sebolt’s convictions
    and order a LIMITED REMAND pursuant to the procedure set
    forth in Paladino.
    16                                        No. 04-2588
    A true Copy:
    Teste:
    ________________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—8-21-06