United States v. Lunsford, Kenneth R. ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 28, 2006
Decided January 10, 2007
Before
Hon. JOEL M. FLAUM, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-2751 Appeal from the United States
District Court for the Southern
UNITED STATES OF AMERICA, District of Illinois
Plaintiff-Appellee, No. 05 CR 40085
v. J. Phil Gilbert, Judge.
KENNETH R. LUNSFORD,
Defendant-Appellant.
ORDER
Kenneth Lunsford pleaded guilty to transporting and shipping child
pornography in interstate commerce by use of a computer. The district court
sentenced Lunsford to 420 months’ imprisonment. Lunsford appeals his sentence.
We affirm.
No. 06-2751 Page 2
I.
On February 2, 2006, Kenneth Lunsford entered an open guilty plea to an
indictment charging that he transported and shipped child pornography in
interstate commerce by use of a computer in violation of 18 U.S.C. § 2252A(a)(1). A
revised Pre-Sentence Report (“PSR”) calculated Lunsford’s base offense level at
twenty-two. The PSR provided for a two-level enhancement because the material
involved a prepubescent minor; a five-level enhancement because the material was
distributed for value; a four-level enhancement because the material portrayed
sadistic or masochistic conduct; a five-level enhancement based on a pattern of
activity involving the sexual abuse or exploitation of a minor; a two-level
enhancement because the offense involved the use of a computer; and a five-level
enhancement because the offense involved 600 images or more. Following a
proposed three-level reduction for acceptance of responsibility, the PSR set forth a
total offense level of forty-two.
Lunsford filed objections to the PSR, first arguing that the five-level
enhancement under U.S.S.G. § 2G2.2 for engaging in a pattern of activity involving
the sexual abuse or exploitation of a minor was inappropriate because it was based
on conduct that occurred years earlier and was unrelated to the charged conduct.
Specifically, Lunsford was convicted of two counts of aggravated sexual abuse of
minors in 2001. The district court rejected Lunsford’s objection, concluding that the
2001 conviction supported a five-level enhancement under § 2G2.2. The district
court also calculated a criminal history category of three, based on Lunsford’s 2001
conviction. Lunsford also argued that using his prior conviction for sexual abuse of a
minor to assess a U.S.S.G. § 2G2.2 enhancement, as well as to enhance his criminal
history category and his minimum and maximum statutory sentences, violated the
constitutional prohibition on double jeopardy. The district court rejected Lunsford’s
arguments, calculated a sentencing range of 360 - 480 months’ imprisonment, and
then sentenced Lunsford to 420 months’ imprisonment. Lunsford appeals his
sentence.
II.
On appeal, Lunsford first argues that the district court erred in enhancing
his offense level five levels pursuant to U.S.S.G. § 2G2.2. Section 2G2.2 provides:
“If the defendant engaged in a pattern of activity involving the sexual abuse or
exploitation of a minor, increase [the offense level] by 5 levels.” U.S.S.G. § 2G2.2.
The district court held that Lunsford’s prior convictions on two counts of aggravated
sexual abuse of minors constituted a pattern of activity involving the sexual abuse
or exploitation of a minor. Lunsford acknowledges his prior conviction for sexual
No. 06-2751 Page 3
abuse of a minor, but claims that the district court erred in enhancing his offense
level under U.S.S.G. § 2G2.2 because, in this case, he was “charged with trafficking
in child pornography,” and the guideline notes provide: “‘Sexual abuse or
exploitation’ does not include possession, receipt, or trafficking in materials relating
to the sexual abuse or exploitation of a minor.” U.S.S.G. § 2G2.2 n.1. Thus, because
his offense of conviction did not constitute “sexual abuse or exploitation,” Lunsford
maintains that the § 2G.2.2 enhancement was improper.
Lunsford’s argument is misplaced. While it is true that trafficking in child
pornography does not constitute “sexual abuse or exploitation” for purposes of the
U.S.S.G. § 2G2.2 enhancement, the district court did not enhance Lunsford’s offense
level for trafficking in child pornography. Rather, the district court enhanced
Lunsford’s sentence under U.S.S.G. § 2G2.2 because of Lunsford’s earlier conviction
on two counts of aggravated sexual abuse of minors. That prior conduct, involving
multiple counts, constituted “a pattern of activity involving the sexual abuse or
exploitation of a minor.”
In response, Lunsford claims that because his prior conviction for sexual
abuse of minors was not related to his current offense, it did not constitute “relevant
conduct” as defined by § 1B1.3 of the guidelines. Lunsford then asserts that he can
only be sentenced based on “relevant conduct.” However, contrary to Lunsford’s
position, U.S.S.G. § 2G2.2 does not require the “pattern of activity” to be “relevant
conduct.” See U.S.S.G. § 2G2.2, cmt. n.1 (“‘Pattern of activity involving the sexual
abuse or exploitation of a minor’ means any combination of two or more separate
instances of the sexual abuse or sexual exploitation of a minor by the defendant,
whether or not the abuse or exploitation (A) occurred during the course of the
offense; (B) involved the same minor; or (C) resulted in a conviction for such
conduct.”). “Indeed, the Sentencing Commission itself has explained that ‘the
conduct considered for purposes of the “pattern of activity” enhancement is broader
than the scope of relevant conduct typically considered under § 1B1.3 (Relevant
Conduct).’” United States v. Lovaas, 241 F.3d 900, 904 (7th Cir. 2001) (quoting
U.S.S.G. § 2G2.2 app. n.1, app. C, amend. 537 (1996)). Lovaas explained this point
more fully. In that case, the defendant argued that the district court should not
have applied U.S.S.G. § 2G2.2, because the decades-old instances of sexual
misconduct upon which the district court relied were not relevant conduct to the two
counts of conviction. We rejected that argument based on the commentary to
U.S.S.G. § 2G2.2 and the Sentencing Commission’s view that to determine whether a
pattern of activity involving the sexual abuse or exploitation of a minor is present, “a court must
consider conduct that would not be considered relevant conduct in other circumstances.” Id.
at 904. We held in Lovaas that the Sentencing Commission’s view was owed
deference, and accordingly a U.S.S.G. § 2G2.2 enhancement was appropriate, even if
No. 06-2751 Page 4
the conduct did not constitute relevant conduct. Id. Similarly, in this case, the
district court did not err in enhancing Lunsford’s offense level under U.S.S.G. §
2G2.2 based on the 2001 conviction for two counts of sexual abuse of a minor.
Lunsford also argues that using his previous convictions for aggravated sexual
abuse of minors to enhance his offense level, his criminal history category, and the
statutory minimum and maximum sentences, violates the Double Jeopardy Clause of
the Constitution. The Fifth Amendment’s Double Jeopardy Clause provides that “[no]
person [shall] be subject for the same offence to be twice put in jeopardy of life or limb[.]” U.S.
Const. amend. V.
As this court explained in United States v. Handford, 39 F.3d 731, 735 (7th
Cir. 1994):
The Double Jeopardy Clause limits the different branches of our
government differently. It prohibits the executive branch from twice
bringing a defendant to trial for the same offense and the legislative
branch from enacting legislation permitting the executive branch to do
this. In the multiple punishment context, the Double Jeopardy Clause
prohibits the judicial branch from imposing multiple punishments in
situations in which the legislature did not intend them. It does not
limit, however, the legislature in this respect, provided the legislature
has adequately expressed its desire for cumulative punishments.
Id. at 735. Thus, the Double Jeopardy Clause has different limitations, depending
on the branch of government involved.
In this case, Lunsford claims that the judicial branch impermissibly imposed
multiple punishments for the same offense, namely his earlier conviction for
aggravated sexual abuse of a minor. However, as we explained in Handford, and
more recently in McCloud v. Deppisch, 409 F.3d 869 (7th Cir. 2005), “the Double
Jeopardy Clause does not preclude the imposition of multiple punishments for the
same offense, so long as the legislature has authorized cumulative punishment.”
McCloud, 409 F.3d at 873. Rather, “in the multiple punishments context, the
Double Jeopardy Clause operates as a limit on the judiciary, ensuring that the total
punishment did not exceed that authorized by the legislature.” Id. Accordingly, “[s]o long as
the legislature has made sufficiently clear that multiple punishments are permitted,
a court does not violate the Double Jeopardy Clause by imposing more than one
punishment for the same offense.” Id.
No. 06-2751 Page 5
Here, while Lunsford complains that he “has been adversely impacted three
times by one 2001 conviction,” Lunsford does not assert that this punishment
exceeded that authorized by Congress. Nor would such a challenge succeed given
Congress’s clear directive that a prior state law conviction “relating to aggravated
sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or
the production, possession, receipt, mailing, sale, distribution, shipment, or
transportation of child pornography, or sex trafficking of children” shall increase the
statutory minimum and maximum sentences from 5 to 20 years, to 15 to 40 years.
18 U.S.C. 2252A(b)(1). Similarly, the Guidelines authorize the use of a prior
conviction for sexual abuse of children to support both an upward adjustment for a
pattern of sexual abuse under § 2G2.2 and an increase in the defendant’s criminal
history. See United States v. McCaffrey, 437 F.3d 684, 688 (7th Cir. 2006).
Accordingly, there is no Double Jeopardy problem. See, e.g., McCloud, 409 F.3d at
873.
Finally, Lunsford claims that his 420-month sentence was unreasonable. The
Supreme Court held in United States v. Booker that appellate courts must review
sentences for unreasonableness. 543 U.S. 220, 261 (2005). “A sentence within a
properly calculated Guidelines range is presumptively reasonable.” United States v.
Garner, 454 F.3d 743, 751 (7th Cir. 2006). In this case, the district court’s sentence
of 420 months’ imprisonment was within the guideline range and is therefore
presumptively reasonable. Lunsford nonetheless argues that the sentence was
unreasonable because the district court did not adequately consider the § 3553
factors. However, in sentencing Lunsford, the district court explained that it had
considered the § 3553 factors, and in fact told Lunsford that those factors “do not run
in your favor.” The district court further explained its rationale for sentencing
Lunsford in the middle of the 360 - 480 range. Specifically, the district court stated
that it was sentencing Lunsford to 420 months in prison because of the need to
protect the public “including the children of this country and the children that would
live around you, you’re putting them in harm’s way just by your presence on the
outside.” Lunsford has not shown that this conclusion was unreasonable, and we will
not second-guess the district court’s exercise of its discretion.
III.
The district court did not err in assessing Lunsford a five-level enhancement
under U.S.S.G. § 2G2.2, because Lunsford’s earlier conviction on two counts of
aggravated sexual abuse of minors constituted a pattern of activity involving the
sexual abuse or exploitation of a minor. Lunsford’s Double Jeopardy challenge also
No. 06-2751 Page 6
fails because he did not establish that the district court exceeded the authority
granted it by Congress. Finally, Lunsford did not overcome the presumptive
reasonableness of the 420-month sentence. For these and the foregoing reasons, we
AFFIRM.