United States v. Jerry Hendricks ( 2015 )

NONPRECEDENTIAL DISPOSITION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
Submitted September 22, 2015 *
Decided September 25, 2015
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 14-2477
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois.
v. No. 12-CR-20025-001
JERRY L. HENDRICKS, Sue E. Myerscough,
Defendant-Appellant. Judge.
ORDER
Jerry Hendricks, who is 68, was prosecuted on multiple counts in federal court
after photographing himself molesting a young girl. At sentencing the district court
concluded—and Hendricks agreed—that life imprisonment plus ten years was the
minimum sentence that could be imposed given the defendant’s prior convictions for
sex crimes against children. The court did not think that the minimum sentence was long
enough, however, and instead imposed life plus 30 years. On appeal Hendricks has
changed course and now argues that life imprisonment was not mandatory on any count
*We granted the parties’ motion to waive oral argument. Thus, the appeal is
submitted on the briefs and record. See FED. R. APP. P. 34(f).
No. 14-2477 Page 2
of conviction. We conclude that he has waived any challenge to his sentence and affirm
the district court’s judgment.
Hendricks, a longtime resident of South Carolina, has incurred 20 felony
convictions in that state since 1970. Among them are two for committing a lewd act on a
child under 16, see S.C. CODE ANN. § 16-15-140 (1996); three others for second-degree
criminal sexual conduct with a minor, id. § 16-3-655(2) (1984); and five for “assault and
battery of a high and aggravated nature,” see State v. Jones, 130 S.E. 747, 751 (S.C. 1925)
(defining elements of common-law offense), overruled on other grounds by State v. Foust,
479 S.E.2d 50 (S.C. 1996). All of the convictions for assault and battery involved offensive
touching of a sexual nature, and one of the victims was a minor. Shortly after completing
his most recent South Carolina sentence, Hendricks moved to Illinois to live with a
former girlfriend. At her home he used a cell phone to photograph himself engaging in
sexual contact with the woman’s seven-year-old daughter. The child told her mother,
and authorities seized the cell phone. Hendricks was charged with possessing child
pornography, 18 U.S.C. § 2252(a)(4)(B); four counts of sexually exploiting a child,
id. § 2251(a); and committing a felony sex offense while required to register as a sex
offender, id. § 2260A. A jury returned guilty verdicts on all six counts.
A probation officer calculated a guidelines term of life imprisonment based on a
total offense level of 43 and criminal-history category V. The probation officer
concluded, though, that a recidivism enhancement for offenders convicted of
enumerated sex crimes against children, see id. § 3559(e), mandated life sentences on the
§ 2251(a) counts. The probation officer also concluded that Hendricks faced statutory
minimums of ten years on the two remaining counts, with the sentence on the § 2260A
count required to run consecutively to the life terms. Hendricks did not object to the
probation officer’s understanding of the statutory penalties, and, in fact, at sentencing
his lawyer expressly concurred that the district court was compelled to impose a life
sentence. The judge too concluded that § 3559(e) applies; a single “prior sex conviction”
is enough under the statute, and the judge reasoned that Hendricks’s three convictions
for criminal sexual conduct with a minor and his conviction for assault and battery
involving a child victim all qualify (the judge was uncertain if committing a lewd act on
a child under 16 also qualifies). The judge decided, however, that even a life term plus
the consecutive ten years required by § 2260A was too little given Hendricks’s “horrific
sex crimes” against children. The court imposed life terms on the four § 2251(a) counts
plus consecutive sentences of 20 years on the § 2252(a)(4)(B) count and 10 years on the
§ 2260A count, for a total of life plus 30 years.
No. 14-2477 Page 3
On appeal Hendricks is represented by different counsel. He challenges the
application of § 3559(e) principally on the ground that his prior convictions that
triggered the recidivism enhancement were not alleged in the indictment or proven to a
jury. Hendricks acknowledges that Almendarez-Torres v. United States, 523 U.S. 224, 239–
47 (1998), rejects this contention, but he anticipates the decision being overruled by the
Supreme Court. Unless that happens, however, the opinion binds us. See United States v.
Shields, 789 F.3d 733, 741–42 (7th Cir. 2015); United States v. Browning, 436 F.3d 780, 782
(7th Cir. 2006).
In any event, Hendricks stipulated at trial to his prior convictions, did not object
to the probation officer’s account of his criminal history, and indeed his lawyer expressly
conceded at sentencing that life imprisonment is mandatory. Thus, Hendricks has
waived this argument and all other challenges to the recidivism enhancement. See United
States v. DeSilva, 505 F.3d 711, 717 (7th Cir. 2007); United States v. Walton, 255 F.3d 437,
441–42 (7th Cir. 2001).
AFFIRMED.