United States v. David Hogue

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2354
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID C. HOGUE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 17-CR-30016 — Nancy J. Rosenstengel, Chief Judge.
____________________
SUBMITTED APRIL 13, 2020 — DECIDED MAY 24, 2021
____________________
Before SYKES, Chief Judge, and HAMILTON and ST. EVE,
Circuit Judges.
SYKES, Chief Judge. A grand jury charged David Hogue
with receiving child pornography in violation of 18 U.S.C.
§ 2252A(a)(2)(A). As a condition of his pretrial release, he
stipulated to the installation of special monitoring software
on his computer. The software caught him downloading
child pornography again; it also detected his repeated efforts
2 No. 19-2354
to delete and wipe the downloaded files from his hard drive
to cover his tracks.
The grand jury issued a superseding indictment charging
Hogue with three crimes: the original charge of receiving
child pornography; a second count of receiving child por-
nography for the downloads while on pretrial release; and
destruction of evidence with intent to obstruct an FBI inves-
tigation, 18 U.S.C. § 1519. The crime of receiving child
pornography is punishable by a minimum of 5 years and a
maximum of 20 years in prison. Id. § 2252A(b)(1). On
Count 2, however, the indictment added a sentencing en-
hancement under 18 U.S.C. § 3147(1), which requires a
consecutive term of up to 10 years “in addition to the sen-
tence prescribed for the offense” for a crime committed
while on pretrial release.
Hogue pleaded guilty to all three counts. The district
judge sentenced him to 20 years in prison, well below the
advisory range under the Sentencing Guidelines. Hogue
now seeks to unwind his guilty plea to Count 2 based on a
misstatement by the judge at the change-of-plea hearing
about the effect of the § 3147(1) enhancement. He also argues
that the judge failed to fully advise him of the nature of the
offense and failed to ensure an adequate factual basis for the
plea.
These arguments are new on appeal, so our review is
limited to correcting plain error. Here, plain-error review
requires Hogue to establish both a clear or obvious error and
“a reasonable probability that, but for the error, he would
not have entered the [guilty] plea.” United States v.
Dominguez Benitez, 542 U.S. 74, 83 (2004). He has not carried
this burden. Although the judge mistakenly stated the
No. 19-2354 3
maximum penalty on Count 2 during the plea colloquy,
Hogue has not even asserted—much less established—that he
would not have pleaded guilty but for this error. And the
record confirms his understanding of the offense and an
adequate factual basis for the plea.
Finally, Hogue challenges his sentence on procedural
grounds, arguing that the judge improperly relied on an
investigator’s testimony about his risk of committing a sex
offense against a child. We find no error and affirm the
judgment across the board.
I. Background
In October 2015 the FBI opened an investigation to iden-
tify persons sharing and receiving child pornography on the
peer-to-peer file-sharing network Gnutella. An FBI task force
in the Southern District of Illinois eventually discovered that
an IP address associated with David Hogue had download-
ed 16 files of child pornography from the network. In
September 2016 agents executed a search warrant at Hogue’s
home in Madison County and seized several electronic
devices. Forensic analysis of Hogue’s desktop computer
revealed numerous images and videos containing child
pornography and depicting children ranging in age from
infancy to about 12 years old.
Patrick Parker, a deputy sheriff in nearby Calhoun Coun-
ty who was assigned to the FBI task force, interviewed
Hogue after the search. Hogue admitted that he used the
software application LimeZilla to download child pornogra-
phy from the Gnutella network. He acknowledged that he
had been downloading child pornography for several years.
After the interview Hogue repeatedly contacted Deputy
4 No. 19-2354
Parker by phone to discuss the investigation and his addic-
tion to child pornography.
In February 2017 a grand jury indicted Hogue for receiv-
ing child pornography in violation of § 2252A(a)(2)(A). He
was released on bond in March on condition that monitoring
software be installed on all of his electronic devices with
Internet access.
Two months later the monitoring software revealed that
Hogue had again used LimeZilla to download and view
child pornography. It also showed that Hogue repeatedly
ran a computer program to erase his hard drive in an effort
to cover up his new crimes. Agents seized Hogue’s comput-
er, and a forensic examination confirmed what the monitor-
ing software had shown. The forensic review revealed
multiple videos containing child pornography. Hogue told
Deputy Parker that he was sorry and that he had tried to
overcome his child-pornography addiction but had relapsed.
In February 2018 the grand jury issued a superseding in-
dictment charging Hogue with two counts of receiving child
pornography—the original charge from 2016 and a second
count for the downloads detected by the monitoring soft-
ware in 2017. Because Hogue committed the second offense
while on pretrial release, Count 2 included a sentencing
enhancement under § 3147(1), which adds a mandatory
consecutive prison term of up to 10 years to the underlying
penalty for any crime committed while on pretrial release.
The superseding indictment also charged a third count for
destruction or alteration of records or documents with intent
to obstruct the FBI’s investigation. § 1519.
No. 19-2354 5
Hogue pleaded guilty to all three crimes. In a written
stipulation of facts, he admitted that he knowingly down-
loaded and viewed child pornography on the dates charged
in the superseding indictment—the date in 2016 as originally
charged and also on the date in 2017 while he was on pretri-
al release. He also admitted that while on release, he had
deleted and wiped multiple files from his hard drive.
At the change-of-plea hearing, Hogue confirmed that he
had read both the original and superseding indictments and
had fully discussed the charges with his attorney. The judge
confirmed that Hogue understood each of the rights he was
waiving. She then asked the prosecutor to state the elements
of the crimes and the applicable penalties. For Count 1 the
prosecutor correctly stated the applicable penalty: a mini-
mum of 5 years and a maximum of 20 years in prison.
§ 2252A(b)(1). He also correctly recited the maximum penal-
ty for Count 3: 20 years in prison. § 1519.
As for Count 2, the prosecutor described the elements
and maximum penalty as follows:
The elements of [the] offense charged in
Count 2 are also receipt of child pornography,
but it’s additional elements in that it is a
crime[] which creates a sentencing enhance-
ment that was—occurred while the defendant
was on pretrial release.
So in addition to the four elements I just read,
which I’ll go over again, element one would be
that on or about May the 16th of 2017, while
the defendant was on pretrial release pursuant
to an order from this Court dated March 8,
6 No. 19-2354
2017, in Case No. 3:17-CR-NJR, and said order
notified the defendant of potential effect of
committing an offense while on pretrial re-
lease, he knowingly committed the offense of
receipt of child pornography in that he re-
ceived a computer video file entitled
“MRVINE_C0020_090729.1918.avi”; that that
video file contained child pornography; that
the defendant knew that one or more persons
depicted was under the age of 18; and it was
shipped in interstate commerce.
The penalty for that offense as it’s specific to
occurring while on pretrial release is not more
than 10 years’ imprisonment as it is a felony, a
$250,000 fine, or both; not more than three
years’ supervised release; $100 special assess-
ment. Any term of imprisonment that the
Court would order under this statute shall run
consecutive to any other terms of imprison-
ment that the Court would order on Counts 1
or 3.
The judge sought clarification, asking the prosecutor if
receiving child pornography while on pretrial release “does
not have the five-year minimum [for receiving child pornog-
raphy] because it is charging pretrial release and must be
consecutive?” The prosecutor responded, “Correct, your
Honor,” and then elaborated:
[I]n charging the receipt while on pretrial re-
lease, it adds two additional elements[,] basi-
cally that he commits any felony[,] in this case
being receipt while on pretrial release. It’s a
No. 19-2354 7
maximum with no minimum of 10 years’ im-
prisonment. But any time the Court deems,
whether it would be a day or up to 10 years on
that offense, would have to run consecutive to
any time the Court would give on the other
counts.
The judge and Hogue’s attorney accepted this statement
of the maximum penalty for Count 2. The judge then ad-
dressed Hogue directly: “Count 2 can be anything up to
10 years, but it must run consecutive to Count 1. Do you
understand that?” He answered, “Yes.”
The prosecutor and the judge were wrong about the ef-
fect of § 3147(1) on Count 2. For crimes committed while on
pretrial release, the statute requires a prison term of up to
10 years “in addition to the sentence prescribed for the
offense,” and “the term shall be consecutive to any other
sentence of imprisonment.” § 3147(1). In other words, the
same 5-year minimum for receiving child pornography
applied to both Count 1 and Count 2, and the § 3147(1)
enhancement raised the maximum on Count 2 by 10 years
(from 20 to 30 years) and required the judge to impose a
consecutive sentence on that count.
The judge next asked the prosecutor to summarize the
factual basis for the crimes. Regarding Count 2, the prosecu-
tor explained that the computer-monitoring program and
the follow-up forensic review both revealed that Hogue had
downloaded and received child pornography and had also
deleted and wiped the downloaded files from his hard drive
multiple times. The judge asked Hogue if he agreed with
this summary, and he said, “Yes.” The judge also inquired,
“Has anyone made any prediction or promised you as to
8 No. 19-2354
what your sentence will be in this case?” Hogue responded
that his attorney had “said about maybe like [5] to 20 may-
be.” The judge then accepted Hogue’s guilty plea.
At the sentencing hearing, the judge again recited the
applicable penalties, only this time she correctly described
the effect of the § 3147(1) enhancement on Count 2. Specifi-
cally, the judge said that for Counts 1 and 2, “the statute calls
for … a minimum of [5] years, up to 20 years” in prison, and
that Count 2 also “calls for an enhanced penalty of not more
than 10 years, which must be consecutive.” Further, she told
Hogue that the enhancement was “in addition to” the nor-
mal penalty.
Turning to the Sentencing Guidelines, the judge accepted
the defense attorney’s argument that Hogue should receive
the full three-level credit for acceptance of responsibility
despite his obstructive conduct while on pretrial release.
With that exception, the judge accepted the Guidelines
calculations in the presentence report and arrived at an
advisory sentencing range of 262–327 months in prison.
The government then called Deputy Parker to testify
about aspects of the investigation and his interview with
Hogue. Relevant here, the officer testified that Hogue admit-
ted to engaging in sexual misconduct with children on two
occasions in the years leading up to the crimes. Hogue had
acknowledged both events to the probation officer, who
described them in the presentence report in the section
elaborating on Hogue’s diagnosis of pedophilic disorder.
Still, the prosecutor asked the officer to tell the court what
Hogue told him about these episodes. Parker explained that
Hogue, who was 32 at the time of sentencing, had admitted
that when he was in his mid-20s, he groped the breast of an
No. 19-2354 9
11- or 12-year-old girl while they were “playing.” Hogue
told Parker that he wanted to make it look like an accident
and didn’t think the girl noticed. Hogue also admitted that
at around the same age, he took his four-year-old niece to a
park in the middle of the night and ran around naked in
front of her. Hogue said that he began fantasizing more
about his niece after this event.
The prosecutor then asked Deputy Parker for his assess-
ment of Hogue’s likelihood to commit a contact sex offense
against a child. Hogue’s attorney objected, arguing that
Parker was not qualified to give an expert psychiatric opin-
ion. The prosecutor responded that he was not eliciting
expert testimony but instead was asking the officer to evalu-
ate the risk based on his experience investigating cases of
this type. The judge overruled the objection, stating that she
understood “the role of this witness and his background.”
But she rephrased the question, asking the witness for his
“opinion about the need to protect the public.” Parker
explained that he did not view Hogue as a serious threat to
the public because he was not “the type” who would stalk
children at a playground or abduct a child. He added,
however, that given Hogue’s sexual interest in children, if he
were “given an opportunity [to abuse a child] in a private
setting, I do believe he would take the opportunity.”
The prosecutor argued for a below-Guidelines sentence
of 13.5 years—10 years concurrent on each count, plus
3.5 years consecutive for the § 3147(1) enhancement. Hogue’s
attorney urged the judge to impose a total sentence of
5 years and 1 day.
The judge then reviewed the sentencing factors in
18 U.S.C. § 3553(a), starting with an explanation of her
10 No. 19-2354
general dissatisfaction with the Sentencing Guidelines in
child-pornography cases—in particular, the distorting effect
of the routine application of the enhancement for use of a
computer in the commission of the crime. Commenting on
Deputy Parker’s testimony, the judge agreed that Hogue
was not likely to lure or abduct a child from a public place,
but she expressed concern that he might molest a child in
private if he had that opportunity. She also specifically
addressed Hogue’s “dysfunctional upbringing,” mental-
health issues (notably, his diagnosis of pedophilic disorder),
and serious offense conduct while on bond. In the end, the
judge settled on a below-Guidelines sentence of 20 years in
prison: 10 years concurrent on each count plus a consecutive
10-year term on Count 2 pursuant to the § 3147(1) enhance-
ment.
II. Discussion
Hogue challenges the validity of his guilty plea on
Count 2 based on the judge’s misstatement during the plea
colloquy of the maximum penalty on that count. He also
argues that the judge failed to properly advise him of the
elements of the offense and did not ensure an adequate
factual basis for his plea. Finally, Hogue challenges his
sentence, claiming that the judge committed procedural
error in admitting Deputy Parker’s testimony.
A. Withdrawal of Guilty Plea on Count 2
Hogue did not move to withdraw his guilty plea in the
district court, so our review is limited to correcting plain
error. See FED. R. CRIM. P. 52(b); United States v. Williams,
946 F.3d 968, 971 (7th Cir. 2020). Plain-error review in the
guilty-plea context requires the defendant to demonstrate a
No. 19-2354 11
clear or obvious error during the plea process and “a rea-
sonable probability that, but for the error, he would not have
entered the plea.” Dominguez Benitez, 542 U.S. at 83.
1. Knowledge of the Maximum Penalty
Before accepting a defendant’s guilty plea, the judge
must “inform the defendant of, and determine that the
defendant understands, … any maximum possible penalty,
including imprisonment, fine, and term of supervised re-
lease.” FED. R. CRIM. P. 11(b)(1)(H). The government
acknowledges that the judge made an obvious error when
she misstated the maximum penalty for Count 2 during the
change-of-plea hearing.
To recap, the judge took the prosecutor’s lead and
viewed the § 3147(1) enhancement—up to 10 years consecu-
tive to any other sentence—as the sole penalty for the
Count 2 offense of receiving child pornography while on
pretrial release. As we’ve explained, that’s not what
§ 3147(1) says. By its terms, the statutory enhancement
applies in addition to the sentence prescribed for the underly-
ing offense: “A person convicted of an offense committed
while released under this chapter shall be sentenced, in
addition to the sentence prescribed for the offense[,] to a term of
imprisonment of not more than ten years if the offense is a
felony,” and the sentence “shall be consecutive to any other
sentence of imprisonment.” § 3147(1) (emphasis added).
The underlying offense of receiving child pornography
carries a prison term of “not less than 5 years and not more
than 20 years.” § 2252A(b)(1). The judge should have added
the § 3147(1) enhancement to the statutory maximum for the
underlying offense. In other words, the maximum sentence
12 No. 19-2354
on Count 2 wasn’t 10 years (as the judge stated) but 30 years
in prison: the 20-year maximum for receiving child pornog-
raphy plus an additional term of up to 10 years under the
§ 3147(1) enhancement.
To unwind his guilty plea, however, Hogue must do
more than point to an obvious error. He must establish a
reasonable probability that he would not have pleaded
guilty but for the error. See Williams, 946 F.3d at 971. But
Hogue has “never asserted,” let alone established, “that he
would have insisted on going to trial (or held out for a better
deal) if he had been aware” of the actual effect of § 3147(1)
on the maximum penalty for Count 2. United States v.
Dowthard, 948 F.3d 814, 818 (7th Cir. 2020) (emphasis added).
Indeed, the record suggests the opposite conclusion:
when he was caught downloading child pornography on
pretrial release, Hogue apologized to Deputy Parker, saying
that he tried to overcome his child-pornography addiction
but had relapsed. A trial would have made little strategic
sense given this frank confession of continued criminal
conduct and the unassailable evidence of guilt captured by
the monitoring software and the forensic review. Hogue has
not established a reasonable probability that he would not
have pleaded guilty but for the judge’s error about the
statutory maximum for Count 2.
2. Knowledge of Elements/Factual Basis for the Plea
Rule 11 also requires the judge to “inform the defendant
of, and determine that the defendant understands, … the
nature of each charge to which the defendant is pleading.”
FED. R. CRIM. P. 11(b)(1)(G). Hogue claims that when he
pleaded guilty, he didn’t understand what it means to
No. 19-2354 13
“knowingly receive” child pornography in violation of
§ 2252A(a)(2). He insists that the judge should have told him
that “knowing receipt” requires more than knowingly
downloading and viewing the pornography; it requires
knowingly exercising dominion and control over it.
The judge committed no error, much less a plain error.
During the plea colloquy, she asked the government to state
the elements of a § 2252A(a)(2)(A) violation, and the prose-
cutor responded by reciting the elements of the offense
based on our pattern jury instruction. See PATTERN CRIMINAL
JURY INSTRUCTIONS OF THE SEVENTH CIRCUIT 643–44 (2018)
(requiring a jury to find that the defendant knowingly
received the material listed in the indictment without defin-
ing what it means to “knowingly receive”).
A few cases from other circuits hint at the possibility of
latent complexity in the statute’s culpability element as it
applies to electronic media. 1 But no precedent in this circuit
1 For example, in United States v. Ramos, 685 F.3d 120, 131–32 (2d Cir.
2012), the Second Circuit concluded that the defendant knowingly
received images that were stored in temporary internet files because
he could view them on his screen, he could leave them
on his screen for as long as he kept his computer on, he
could copy and attach them to an email and send them
to someone, he could print them, and he could (with the
right software) move the images from a cached file to
other files and then view or manipulate them off-line.
Similarly, the Eleventh Circuit has held that a person knowingly re-
ceives child pornography “when he intentionally views, acquires, or
accepts child pornography on a computer from an outside source,” even
if he does not deliberately save it to his hard drive. United States v. Pruitt,
638 F.3d 763, 766 (11th Cir. 2011). And the Ninth Circuit has held that
actively seeking out child pornography and knowingly acquiring the
14 No. 19-2354
suggests that the term “knowingly receives” has a unique or
special meaning in this context. Hogue acknowledged
during the plea colloquy that he thoroughly discussed the
charges with his counsel. And he was fully informed of the
nature of the charge in a manner consistent with our prece-
dent. The judge asked him directly if he had any questions
about the elements of the offense, and he said, “no.”
Shifting his focus to a separate Rule 11 requirement,
Hogue repackages this same argument as a challenge to the
factual basis for his plea. See FED. R. CRIM. P. 11(b)(3) (“Before
entering judgment on a guilty plea, the court must deter-
mine that there is a factual basis for the plea.”). As repack-
aged, it fares no better, and we reject it for the reasons
already stated.
B. Sentencing Error
Finally, Hogue asks us to vacate his sentence based on
the judge’s decision to admit Deputy Parker’s testimony
about the risk that Hogue would sexually abuse a child. This
is a claim of procedural error, so our review is de novo.
Hogue’s argument mirrors his objection to the officer’s
lack of qualifications as an expert witness. See FED. R.
EVID. 702. But the Federal Rules of Evidence do not apply at
sentencing, so the judge did not need to comply with the
strictures of Rule 702. United States v. Johnson, 643 F.3d 545,
553 (7th Cir. 2011). And in overruling the objection, the
judge explained that she understood “the role of this witness
and his background.” Considered in context, this qualifier
ability to exert some level of control (e.g., the ability to copy, print, or
email the pornography) is enough. United States v. Romm, 455 F.3d 990,
998 (9th Cir. 2006).
No. 19-2354 15
suggests that the judge appropriately limited her considera-
tion of the officer’s testimony and did not give it weight as
an expert opinion.
Relatedly, Hogue argues that the judge drew an improp-
er inference about public safety from the officer’s testimony
about the two prior episodes of sexual misconduct involving
children. This argument is completely meritless. It was
entirely appropriate for the judge to consider Hogue’s past
sexual misconduct against children in assessing his risk to
the public. Hogue admitted—to the probation officer as well
as to Deputy Parker—that he groped an adolescent girl and
exposed himself to (and sexually fantasized about) his four-
year-old niece. This uncontested history was highly relevant
to the judge’s evaluation of the danger Hogue poses to
children, and she reasonably considered it.
AFFIRMED