United States v. Rondale Chapman , 694 F.3d 908 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3619
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R ONDALE L EE C HAPMAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 4:11-cr-40031—J. Phil Gilbert, Judge.
A RGUED JUNE 12, 2012—D ECIDED S EPTEMBER 20, 2012
Before B AUER, K ANNE, and W ILLIAMS, Circuit Judges.
P ER C URIAM. Rondale Chapman pleaded guilty to
producing child pornography, a crime punishable by no
less than 15 years in prison. See 18 U.S.C. § 2251(a), (e). For
several years Chapman, now 46, lured kids as young as
12 to his home with marijuana and alcohol and filmed
them, usually through “peepholes,” engaging in sexually
explicit conduct. Chapman faced a guidelines range of
life imprisonment and was sentenced to a total of 40 years.
2 No. 11-3619
On appeal he contends that the district court did not
fully evaluate his arguments in mitigation, and also
failed to adequately explain its choice of sentence. On
the surface the first of these contentions seems plausible,
but only because Chapman exaggerates the evidence
presented at sentencing about his background. When we
look beyond his embellishment, it becomes clear that the
“mitigating” factors he cites lacked evidentiary founda-
tion or amounted to “stock” arguments that required
no response from the judge. For that reason we affirm
Chapman’s sentence.
I. BACKGROUND
Since at least 2005, Chapman had been plying minors
with marijuana and alcohol at his home in southern
Illinois. Some teens engaged in sexual activity in the
bathroom. Chapman used a camcorder to secretly film
them through peepholes or when they left the bathroom
door slightly ajar. He also filmed “C.S.” in a bedroom
when C.S. was 12 or 13. That victim, the son of a friend,
found a nude photo of himself on Chapman’s cell phone
when he was 16. This discovery, along with a rumor
about Chapman secretly filming bathroom occupants,
prompted C.S. and another youth to sneak into Chap-
man’s house in January 2011 and search for illicit videos.
C.S. located and removed videotapes depicting several
boys, including a nephew filmed at age 13, urinating or
masturbating in the bathroom. Also on those tapes are
the images taken of C.S. in the bedroom three or four
years earlier; C.S. could not recall the incidents, but in
No. 11-3619 3
different sequences Chapman’s hand can be seen
fondling C.S.’s penis or his voice can be heard coaching
C.S. to masturbate for the camera. The tapes were given
to the police, and a search warrant executed at Chapman’s
home turned up others. The additional tapes include
multiple clips of teens urinating, masturbating, and
engaging in intercourse and oral sex. Among those clips
are Chapman exposing his sleeping nephew’s penis on
a camping trip, and the nephew and a girl engaging in
oral sex and intercourse in the bathroom when both
were 15 or 16.
A probation officer calculated a guidelines imprisonment
range of life based on a total offense level of 43 and Cate-
gory I criminal history. The presentence report includes
three pages about Chapman’s personal and family
history, his mental and emotional health, and his history
of drug use. This information came from Chapman or
family members; none is from social-services agencies
or mental-health professionals. Except for Chapman’s
report of suffering previously undisclosed sexual abuse
as a child, the probation officer’s account is unremarkable:
Rondale Lee Chapman, age 46, was born on
September 19, 1965, in Cape Girardeau, Missouri.
He was one of two children born to Hershel Chap-
man and Kathryn (nee Richardson) Starr. He
indicated he has been a lifelong resident of Union
County, Illinois, with the exception of living in
Black Oak, Indiana, for less than a year at approxi-
mately five years of age. . . .
The defendant’s father . . . is approximately age
68 . . . . The defendant’s mother . . . died in Febru-
4 No. 11-3619
ary 2010 after suffering from bone cancer. . . .
[P]rior to his mother’s illness, she worked as a
restaurant waitress.
The defendant has one full sibling. . . . The
defendant also has four half siblings. . . . [His
maternal half-sister] has visited Chapman since
his incarceration in the instant offense.
When asked about his childhood, the de-
fendant advised that his parents divorced when
he was four or five years of age. He recalled posi-
tive memories of his parents together. Following
their divorce, Chapman . . . lived with his mother.
He stated he spent approximately every other
weekend with his father; however, it was some-
times less often.
The defendant indicated he was raised in “the
woods in [the Village of] Dongola.” His mother
worked frequently to make sure that the de-
fendant and his siblings had the basic necessities.
He acknowledged that finances were a struggle
for the family. The defendant advised that he
was born with a medical condition resulting in
poor bone development. He explained that his
bones did not grow fast enough for his body’s
development. He stated he was in a wheelchair
for a time and on crutches; however, he “grew out”
of the disease at approximately eight years of age.
The defendant described his mother as “number
one.” They were very close, and the defendant
became emotional when speaking of her death.
No. 11-3619 5
He advised she was a “tough lady,” explaining
that she kept all of her problems to herself. She
struggled with severe asthma and was often very
sick. Due to her health problems, the defendant
advised he had significant responsibilities and
household chores.
....
. . . [T]he defendant’s [maternal half-sister] de-
scribed her brother as “the greatest.” She ex-
plained that he was in large part responsible for
raising her and other siblings. He was much like
a father-figure to her. [She] indicated that the
discovery of the instant offense has completely
shocked her and other family members. Regard-
less, she loves her brother and will support him.
The defendant has never been married. He
indicated that over the past ten years, he has been
sporadically involved in a relationship . . . .
Chapman has fathered one daughter. [She] . . .
has always resided with her mother . . . .
....
The defendant has never been diagnosed nor
treated for any form of mental illness.
Chapman advised that he has been sexually
abused by two family members. The first episode
occurred between ages six and nine. His uncle
sexually abused the defendant repeatedly during
that time frame. The defendant did not report
the abuse to anyone . . . .
6 No. 11-3619
When the defendant was in the sixth and seventh
grades, he was again sexually abused by a different
uncle. He reported the abuse happened on three
or four occasions. Chapman indicated his uncle
would take him out to eat and then fondle him.
Chapman stated that he has never received any
treatment or counseling to address his history
of sexual abuse.
....
Chapman reported that he first consumed alco-
hol during the summer between his seventh and
eighth grade years. . . . [H]e does not believe he
has ever had an alcohol abuse problem.
The defendant admitted he first experimented
with marijuana during eighth grade . . . . He ad-
vised that for the past 10 to 15 years, he has been
a daily marijuana user. . . .
The only other two drugs reportedly used by
the defendant were cocaine and methamphet-
amine. He first tried cocaine during his sophomore
year of high school, and he last used the drug
in 1992 or 1993. Chapman first used methamphet-
amine in 1992 or 1993, and he last used the drug
in 2002. . . .
The defendant has never participated in any
form of substance abuse treatment.
The probation officer did not view any of this information
as warranting a prison sentence below the guidelines
range.
No. 11-3619 7
In addition to lodging objections to the presentence
report (which are not at issue in this appeal), Chapman’s
lawyer filed a sentencing memorandum proposing a 15-
year sentence because of purported mitigating factors.
Yet counsel did not submit additional evidence, not even
an affidavit from Chapman, to flesh out the probation
officer’s sketch of the defendant’s past. Instead, counsel
relied entirely on information in the presentence report
as her factual predicate. According to the lawyer (who
also represents the defendant on appeal), Chapman was
“raised in the woods in Dongola” and “endured an ex-
tremely difficult childhood” marked by bone disease,
financial struggle, significant household responsibilities
and chores attributable to his mother’s ill health, and
“severe trauma as a child due to sexual abuse by two
family members.” “Mr. Chapman’s difficult childhood,”
counsel added, “likely resulted in his early drug use, as
well as his continued drug use as an adult.” “Clearly,” said
counsel, Chapman’s “difficult childhood . . . had a pro-
found, negative and enduring impact,” and if not “for the
lack of guidance, sexual abuse by family members, and
trauma suffered during the course of his childhood,”
Chapman “might not be before” the sentencing court. On
the other hand, counsel continued, Chapman had not
been a “mass producer or mass distributor” of child porn,
and he was remorseful, had a solid work history, zero
criminal-history points, and—as an older sex offender
with no convictions—a supposedly low risk of recidivism.
Moreover, counsel asserted, Chapman’s maternal half-
sister was supportive. And a sentence greater than
15 years, the lawyer insisted, would cause an “unwar-
8 No. 11-3619
ranted sentencing disparity” because judges in four
districts outside this circuit had imposed terms of 15 or
16 years in prosecutions for producing child pornography.
The government countered that 60 years would be
more appropriate. The prosecutor cited studies showing
“a high rate of recidivism among pedophilic sex offenders
generally, ranging from 10 percent to 50 percent,” and
labeled Chapman “more dangerous than the average
consumer of child pornography” because he had com-
mitted a “hands-on” sex crime.
At sentencing the district court adopted the probation
officer’s guidelines calculations. Chapman did not testify
or introduce evidence except for the testimony of a friend
of 25 years who vouched for his character. During
allocution Chapman expressed remorse and said he
felt “so, so sorry for them kids.” He said he had recog-
nized his need for “help” and thus intentionally “left
my video and my film out so it could be discovered.”
In her brief remarks, defense counsel did not mention
Chapman’s sentencing memorandum or emphasize any
ground in mitigation. She described Chapman as “truly
a family man” who suffers from a sickness and lamented
that, even if sentenced to the 15-year minimum, he
would be over 60 when released. A longer sentence,
counsel asserted, would eliminate his incentive and
opportunity to get better.
The district court imposed a total sentence of 40 years,
offering this explanation:
Okay. The Court’s considered all the information
in the presentence report, including guideline
No. 11-3619 9
computations and factors set forth in 18 U.S.C.
3553(a). The Court’s considered the nature and
circumstances of the offense, the history and
characteristics of you as a defendant. This is ob-
viously your first really brush with the law, but
the nature and characteristics of this offense is a
horrendous crime, a horrendous crime that preys
on the—on those that you took advantage of these
young people, one of them your nephew, and
they’ll have to live with that the rest of their lives,
too, Mr. Chapman; the need for the sentence
imposed to reflect the seriousness of the offense,
promote respect for the law and provide a just
punishment; to afford adequate deterrence to
criminal conduct, the production of child pornog-
raphy is—is a scourge on this society which
needs to be deterred; to protect the public from
further crimes of you; and to provide you with
the needed educational or vocational or medical
care, and you definitely need treatment for the
addiction that you have to this type of activity; and
the Court has fashioned a sentence that is neces-
sary but not greater than is needed to—to comply
with the purposes set forth in § 3553(a).
II. ANALYSIS
On appeal Chapman does not challenge the district
court’s adoption of the probation officer’s guidelines
calculations. Instead he argues that the court failed to
address adequately his arguments in mitigation, which
10 No. 11-3619
Chapman identifies as his “low risk” of reoffending, his
remorse and “sincere desire for treatment,” the “devastat-
ing impact” of the “horrific sexual abuse” he endured as
a child, his drug abuse and “its contribution to his legal
and personal difficulties,” his employment history, the
support he enjoys from family and friends, and the need
to avoid “unwarranted sentencing disparities.” And
because the court did not meaningfully consider these
points, counsel contends, the court’s choice of sentence
is not adequately explained.
To avoid procedural error, sentencing judges must
correctly calculate the guidelines range, evaluate the
factors in 18 U.S.C. § 3553(a), and rely on properly sup-
ported facts. United States v. Jackson, 547 F.3d 786, 792
(7th Cir. 2008). Judges must also “adequately explain the
chosen sentence to allow for meaningful appellate
review and to promote the perception of fair sentencing.”
Gall v. United States, 128 S. Ct. 586, 597 (2007); see United
States v. Snodgrass, 635 F.3d 324, 330 (7th Cir. 2011). In
selecting an appropriate sentence, district courts are
expected to address principal, nonfrivolous arguments
in mitigation, United States v. Martinez, 650 F.3d 667, 672
(7th Cir. 2011); United States v. Gary, 613 F.3d 706, 709 (7th
Cir. 2010); United States v. Cunningham, 429 F.3d 673, 678-79
(7th Cir. 2005), but should disregard contentions lacking
factual foundation. “[E]very defendant who asserts that
his or her personal circumstances warrant leniency is
compelled to supply a factual predicate for the contention,”
United States v. Ramirez, 675 F.3d 634, 641 (7th Cir. 2011);
see United States v. Curby, 595 F.3d 794, 796-97 (7th
Cir. 2010); United States v. Diaz, 533 F.3d 574, 577-78 (7th
No. 11-3619 11
Cir. 2008); United States v. Tahzib, 513 F.3d 692, 695 (7th
Cir. 2008); United States v. Swanson, 483 F.3d 509, 513 (7th
Cir. 2007); United States v. Acosta, 474 F.3d 999, 1003-04 (7th
Cir. 2007); United States v. Cunningham, 429 F.3d 673, 679
(7th Cir. 2005), and defendants who do not provide that
foundation are “at the mercy of the instincts and intuitions
of the sentencing judge,” United States v. Beier, 490 F.3d 572,
574 (7th Cir. 2007). Moreover, even when arguments in
mitigation are supported factually, judges need not “tick
off every possible sentencing factor or detail and discuss,
separately, every nuance of every argument.” United States
v. Collins, 640 F.3d 265, 271 (7th Cir. 2011); see United
States v. Shannon, 518 F.3d 494, 496 (7th Cir. 2008). The
need for explanation varies with the circumstances,
United States v. Harris, 567 F.3d 846, 853-54 (7th Cir. 2009),
and a judge does enough by stating adequate reasons,
consistent with § 3553(a), for concluding that the chosen
sentence is appropriate, United States v. Paige, 611 F.3d
397, 398 (7th Cir. 2010); United States v. Harris, 490 F.3d
589, 597 (7th Cir. 2007); United States v. Dean, 414 F.3d
727, 729 (7th Cir. 2005).
In Chapman’s case, the district court acknowledged
this prosecution to be his first “brush with the law.”
See 18 U.S.C. § 3553(a)(1). But the court emphasized the
seriousness of the offense, see id., labeling Chapman’s
conduct “horrendous” and noting how he preyed on
young people including his nephew. Chapman’s interest
in child pornography, the court added, demonstrated
a need to safeguard the public from his behavior.
See id. § 3553(a)(2)(c). Addressing counsel’s contention
that Chapman suffers from an “illness,” the court ex-
12 No. 11-3619
plained that the defendant would receive neces-
sary “treatment for the addiction that you have to this type
of activity.” See id. § 3553(a)(2)(D). And consistent
with § 3553(a)(2)(B), the court remarked that child pornog-
raphy is a “scourge on this society” that must be deterred.
The court’s discussion of these factors was adequate.
See United States v. Mantanes, 632 F.3d 372, 375 (7th
Cir. 2011); United States v. Coopman, 602 F.3d 814, 819
(7th Cir. 2010); Shannon, 518 F.3d at 496-97.
We are not persuaded that the district court overlooked
any mitigating factor requiring a response. Chapman’s
“low risk” of reoffending, the first of the grounds cited
in his brief, cannot be characterized as a principal argu-
ment at sentencing. Although this ground is mentioned
in Chapman’s sentencing memorandum, he did not
even mention it at the sentencing hearing. More impor-
tantly, the court was not required to discuss Chapman’s
purportedly low risk of recidivism because there is no
factual basis in the record to support the contention.
In Chapman’s sentencing memorandum his lawyer as-
serted that the defendant’s age along with “[s]cientific
recidivism studies, his minimal criminal history,
strong work ethic, and firm acceptance of responsibility
indicate that any risk of recidivism is extremely low.” But
a lawyer’s “unsupported statements are, of course, not
evidence,” Diaz, 533 F.3d 578, and here counsel did not
submit reports or affidavits from experts, or any other
evidence, to demonstrate a causal relationship between
Chapman’s criminal history, employment history, and
acceptance of responsibility and his individual likeli-
hood of reoffending. See Tahzib, 513 F.3d at 695 (explaining
No. 11-3619 13
that defendant bears burden of proving mitigating fac-
tors); cf. Mantanes, 632 F.3d at 375; Coopman, 602 F.3d at
817-18; Curby, 595 F.3d at 796-98; United States v. Nurek,
578 F.3d 618, 626 (7th Cir. 2009). In her sentencing memo-
randum counsel cited to recidivism studies as support
for the assertion that the rate of reoffending “for sex
offenders is low,” yet those studies concern “sex offenders”
generally. We have called it “a mistake to lump together
different types of sex offender” and emphasized that a
pedophilic sex offender like Chapman “who has commit-
ted both a child-pornography offense and a hands-on sex
crime is more likely to commit a future crime, including
another hands-on offense, than a defendant who has
committed only a child-pornography offense.” United States
v. Garthus, 652 F.3d 715, 720 (7th Cir. 2011), cert. denied,
132 S. Ct. 2373 (2012).
Much the same can be said about generalizations con-
cerning age. Chapman faults the district court for not
discussing his “age of 46 and his age upon release” as
suggesting a low risk of recidivism and thus favoring a
sentence at the 15-year statutory minimum. Again
what’s missing is a factual predicate. Chapman did not
offer empirical evidence that the compulsion to produce
child pornography “is so far diminished” at age 46—or
even at 61, the age he would be after serving 15 years—“as
to render the person relatively harmless, or indeed that
it is diminished at all.” Beier, 490 F.3d at 574-75. Indeed,
since he was still producing child pornography when
he was caught in his mid-40s, Chapman’s argument
that age is a mitigating factor is especially hollow.
14 No. 11-3619
Equally unconvincing is counsel’s contention that the
district court failed to appreciate the “devastating im-
pact” of the “severe trauma” Chapman purportedly
experienced after being abused by his uncles. Counsel
writes in her brief that Chapman’s two uncles subjected
him to “horrific” sexual abuse. Certainly any sexual abuse
of a child could be described as horrific, but counsel uses
the term as a superlative without any factual support.
The presentence report does not describe the sexual
abuse except to say that an uncle fondled Chapman
several times when he was in middle school. Chapman
did not supply an affidavit or testimony to supplement
this scant detail, nor did he even try to explain why
the sexual abuse he suffered should be seen as a
mitigating, rather than potentially aggravating, factor in
a case where he may not be able to control his sexual
impulses. We have said before that it’s “not nearly
enough” for defense counsel “to point out that his client
had been a victim of child molestation”; what is missing
is evidence “to indicate that such a history makes a
person less able to avoid becoming a child molester, let
alone becoming a producer of child pornography.”
Beier, 490 F.3d at 574. As it was the district court had
nothing to evaluate.
Ditto with substance abuse, another of Chapman’s
purported factors in mitigation. Counsel argues that
the district court should have addressed drug use as a
mitigating factor because of “its contribution” to Chap-
man’s “legal and personal difficulties.” Yet the only
evidence about drug use comes from the presentence
report: Chapman smoked marijuana daily and had used
No. 11-3619 15
cocaine and methamphetamine in the past but given
up both long before his arrest in this case. There is not a
whit of evidence in the presentence report (or any-
where else in the record) to substantiate counsel’s
assertion that Chapman’s drug use prompted him to
commit sexual abuse or produce child pornography.
Chapman further argues that the district court failed
to address the specter of an unwarranted sentencing
disparity. See 18 U.S.C. § 3553(a)(6). But that factor is
already taken into account whenever, as here, the sen-
tencing court imposes a prison term within the guide-
lines range. Gall, 128 S. Ct. at 599; United States v. Reyes-
Medina, 683 F.3d 837, 840-41 (7th Cir. 2012); United States
v. Pape, 601 F.3d 743, 750 (7th Cir. 2010); United States v.
Bartlett, 567 F.3d 901, 908 (7th Cir. 2009). Challenging
a within-range sentence as disparate is a “pointless”
exercise; Chapman does not dispute that his guidelines
range was properly calculated, and so § 3553(a)(6) cannot
be a basis to deem the sentence unreasonable. See United
States v. Shrake, 515 F.3d 743, 748 (7th Cir. 2008). In other
cases we have upheld lengthy sentences for producers
of child pornography even where, in contrast with Chap-
man’s case, victims were not molested in the process.
See, e.g., United States v. Klug, 670 F.3d 797, 801 (7th
Cir. 2012); United States v. Noel, 581 F.3d 490, 500-01
(7th Cir. 2009).
The remaining factors in mitigation listed in Chapman’s
brief—his “sincere desire for treatment,” his “deep re-
morse,” his history of gainful employment, and the sup-
port of family and friends—are generic or “stock” argu-
16 No. 11-3619
ments that required no mention by the district court
because they do not distinguish Chapman from many
other defendants. See United States v. Russell, 662 F.3d
831, 854 (7th Cir. 2011) (remorse, college education, job
skills), cert. denied, 132 S. Ct. 1816 (2012); Collins, 640 F.3d
at 271 (childhood trauma); United States v. Hall, 608
F.3d 340, 347 (7th Cir. 2010) (no relationship with father,
history of youthful misbehavior, alcohol and marijuana
use); United States v. Allday, 542 F.3d 571, 572-73 (7th
Cir. 2008) (age, health problems, stable work history).
Moreover, there is no factual basis in the record to
support the repeated references in Chapman’s sen-
tencing memorandum to his “extremely difficult child-
hood.” To the contrary, the presentence report notes that
Chapman “maintains a close relationship with all his
siblings,” has “positive memories of his parents together,”
had “the basic necessities” as a child, “grew out” of a
childhood disease by age eight, and contributed to his
family through unspecified “significant responsibilities
and household chores.” All of this is from Chapman’s
self reports, and none of it paints a picture of an
“extremely difficult childhood.”
What remains is Chapman’s contention that his 40-year
prison sentence is substantively unreasonable because,
he says, the district court improperly speculated about
the harm to his victims and chose a term that for
someone his age amounts to life imprisonment. Yet a
sentence within a properly calculated guidelines range,
like Chapman’s, is presumptively reasonable, Rita v.
United States, 551 U.S. 338, 347 (2007); United States v.
Tanner, 628 F.3d 890, 908 (7th Cir. 2010), and that pre-
No. 11-3619 17
sumption holds even when a sentence to a term of years
will effectively result in life imprisonment, see Russell,
662 F.3d at 853-54. The sentence imposed is consistent
with the gravity of Chapman’s conduct, see 18 U.S.C.
§ 3553(a)(1), (2)(A), as well as the mandate to deter those
tempted to commit similar crimes, id. § 3553(a)(2)(B).
See Russell, 662 F.3d at 853-54. And the district court’s
discussion of victim harm was not error; although sen-
tencing decisions cannot rest on speculation or baseless
allegations of harm, United States v. Bradley, 628 F.3d 394,
400 (7th Cir. 2010), here the court identified actual
harm, noting that for the rest of their lives Chapman’s
victims will live with his crimes. As we recently ex-
plained, “child pornography is pernicious precisely
because the harm it produces is not limited to the sexual
abuse it depicts.” Klug, 670 F.3d at 800 (citing New York
v. Ferber, 458 U.S. 747, 759 n.10 (1982)).
III. CONCLUSION
For the foregoing reasons, we A FFIRM the judgment.
9-20-12