United States v. Von Loh, Daniel

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2462
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DANIEL VON LOH,
Defendant-Appellant.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 03 CR 1092—Ruben Castillo, Judge.
____________
ARGUED FEBRUARY 9, 2005—DECIDED AUGUST 2, 2005
____________
Before BAUER, EASTERBROOK, and ROVNER, Circuit
Judges.
BAUER, Circuit Judge. Defendant-Appellant Daniel
Von Loh pleaded guilty to one count of engaging in sexual
acts with a 14-year-old girl in violation of 18 U.S.C.
§ 2423(b). He also stipulated to having engaged in sexual
acts on two other occasions with that same girl. The district
court sentenced him to 198 months’ imprisonment. He
appeals his sentence. We affirm.
2 No. 04-2462
I. Background
While living in Madison, Wisconsin, Von Loh subscribed
to Internet Service Providers (“ISP”), which offers com-
puter-related communication services. ISP subscribers can
communicate with other ISP subscribers through e-mail
and instant messaging. Typically, a user assigns himself a
screen name, by which he identifies himself to other users
of the service. Von Loh created several private accounts
with ISP and used the screen names “Dan_the_man_4u,”
“Curious_about_u,” “Music_lover_1980,” “Ericluvsu,” and
“Baseballstarr69.” For several months in 2003, Von Loh
communicated on the internet with a 14-year-old girl. He
was aware of her actual age during most of this time. Von
Loh used multiple screen names when he chatted with her,
though he did not inform her of that.
In August 2003, Von Loh persuaded the girl to meet him.
She agreed, and he drove from Madison to pick her up near
her home in Schaumburg, Illinois. They traveled to a near-
by motel, where the two engaged in oral sex. Afterwards,
Von Loh dropped her off near her home and returned to
Madison. They did the same thing again in September 2003.
On November 13, 2003, Von Loh asked the girl to meet
him yet another time, and she agreed. On November 14,
2003, he drove from Madison to Schaumburg, picked her up,
and they checked into a motel. At the motel, Von Loh
engaged in oral sex with the girl at least twice and vaginal
intercourse once. On November 15, 2003, they returned to
the motel and had vaginal intercourse twice. Later that
evening, the girl phoned her parents, who were concerned
about her safety and had contacted the police. She asked
Von Loh to drop her off a few blocks from home, which he
did before returning to Madison.
On December 18, 2003, the grand jury returned a three-
count indictment against Von Loh. He pleaded guilty to a
single count of traveling on November 14, 2003, in inter-
No. 04-2462 3
state commerce with the intent of engaging in illicit sexual
conduct with a minor in violation of 18 U.S.C. § 2423(b). He
also stipulated to the August and September 2003 en-
counters, as well as to an enhancement for having engaged
in a pattern of prohibited sexual conduct, pursuant to
§ 4B1.5(b)(1) of the United States Sentencing Guidelines.
The plea agreement reflected a disagreement between the
parties on the issue of whether the stipulated offenses
should be grouped together with the offense of conviction,
pursuant to U.S.S.G. § 3D1.2. The district court decided not
to group the offenses. As a result, the applicable sentencing
range was 168 to 210 months, and the district court sen-
tenced Von Loh to 198 months’ imprisonment. Had the
offenses been grouped, the sentencing range would have
been 121 to 151 months.
II. Discussion
The sole issue on this appeal is whether the sentencing
court erred in treating the offense of conviction and stip-
ulated offenses as separate harms.1 Von Loh argues that his
stipulated conduct should have been grouped with his
charged conduct pursuant to U.S.S.G. § 3D1.2(b), because
it occurred in the context of an ongoing relationship and
thus involved substantially the same harm. He also argues
in the alternative that the episodes should have been
grouped under U.S.S.G. § 3D1.2(c) to avoid “double count-
ing” of his conduct. We review the district court’s interpre-
tation and application of the Guidelines de novo. See United
States v. Purifoy, 326 F.3d 879, 880 (7th Cir. 2003).
Section 3D1.2 of the Guidelines advises that “[a]ll counts
involving substantially the same harm shall be grouped
together into a single Group.” U.S.S.G. § 3D1.2. Separate
1
At oral argument, Von Loh withdrew his claim that his sentence
was in violation of United States v. Booker, 125 S.Ct. 738 (2005).
4 No. 04-2462
counts involve substantially the same harm when they “in-
volve the same victim and two or more acts or transactions
connected by a common criminal objective or constituting
part of a common scheme or plan.” U.S.S.G. § 3D1.2(b). The
conduct at issue involved a single victim, but there is a
question as to whether it involved substantially the same
harm. The application notes pertaining to this subsection
include a hypothetical that offers some guidance. The hypo-
thetical (“Example 5”) states that when “[t]he defendant is
convicted of two counts of raping the same person on differ-
ent days . . . [t]he counts are not to be grouped together.”
U.S.S.G. § 3D1.2, cmt. n. 4, ex. 5.
Courts interpreting the Guidelines must “begin with the
text of the provision and the plain meaning of the words in
the text.” United States v. Garcia-Lopez, 375 F.3d 586, 587
(7th Cir. 2004). In addition to the actual language of the
Guidelines, application notes are considered “part of the
Guidelines themselves, and not mere commentary on them.”
United States v. Tomassino, 206 F.3d 739, 741 (7th Cir.
2000) (citing Stinson v. United States, 508 U.S. 36, 38
(1993)). The district court’s decision to treat Van Loh’s acts
of sexual misconduct as separate harms was consonant with
both the plain language of § 3D1.2(b) and Example 5.
Although this is an issue of first impression in this circuit,
the district court’s decision was consistent with the circuit
courts that have addressed this and closely related issues.
United States v. Big Medicine, 73 F.3d 994, 997 (10th Cir.
1995) (finding that defendant’s 75 instances of sexual con-
tacts with the same minor should not be grouped). See also
United States v. Vasquez, 389 F.3d 65, 76-77 (2d Cir. 2004)
(holding that multiple instances of non-forcible, sexual mis-
conduct with the same victim on different occasions are not
subject to grouping); United States v. Griswold, 57 F.3d 291,
296 (3d Cir. 1995) (noting that multiple counts of rape
involving the same victim are not to be grouped together
under the Guidelines). Von Loh cites many cases for the
No. 04-2462 5
proposition that his conduct inflicted only one composite
harm, but they are easily distinguished. Many do not even
deal with charges of sexual misconduct. Those that do
either involve multiple acts of uninterrupted sexual mis-
conduct or the grouping of lesser-included offenses; neither
situation is pertinent here.
Von Loh further contends that the district court’s reliance
on Example 5 was misplaced because the example’s use of
the term “rape” covers only forcible assaults, not statutory
rape. He claims that a close reading of case law and the
Guidelines themselves reveals distinctions between the two
types of rape that make Example 5 irrelevant to statutory
rape cases. We are unpersuaded. Section 3D1.2 of the
Guidelines includes cross-references to provisions for both
aggravated sexual abuse (§ 2A3.1) and statutory rape
(§ 2A3.2). See U.S.S.G. § 3D1.2. This indicates that the
Sentencing Commission knew when it drafted Example 5
that the Guidelines recognized multiple forms of rape. It is
reasonable to infer from these cross-references that the
Sentencing Commission used the more expansive term
“rape” to cover various forms of the crime. That the Guide-
lines distinguish between forcible and statutory rape in
other provisions further supports the inference that the
Sentencing Commission’s use of more inclusive terminology
in Example 5 was intentional. See U.S.S.G. § 2L1.2, cmt. n.
1(B) (defining “crime of violence” to include both forcible sex
offenses and statutory rape); U.S.S.G. § 4B1.2, cmt. n. 1
(defining “crime of violence” to include forcible sex offenses
only).
The case law that Von Loh references does not help him.
He cites to two unpublished state court decisions that are
irrelevant. The first, State v. English, 2002 WL 31455610(R.I.Super 2002), simply holds that a defendant does not
qualify as an aggravated offender under state law unless
there are multiple victims; the second, State v. Sims, 2002
WL 31310787 (Iowa App. 2002), which involves a 17-year-
6 No. 04-2462
old victim, does not deal with issues pertinent to statutory
rape. He also cites a concurring opinion in a Ninth Circuit
decision, United States v. Sneezer, 983 F.2d 920 (9th Cir.
1992), for the proposition that Example 5 envisions cir-
cumstances under which multiple rapes would be grouped.
See id. at 926 (O’Scannlain, J., concurring). Be that as it
may, this is not one of those cases. The approach taken by
the district court here is supported by a Tenth Circuit
decision, United States v. Big Medicine, 73 F.3d 994 (10th
Cir. 1995), which ruled persuasively that 75 instances of
statutory rape involving the same victim should not be
grouped. Id. at 997. The Tenth Circuit specifically relied
upon Example 5 in reaching its conclusion. Id. Moreover,
this was not a situation like the one in Sneezer where sev-
eral rapes occurred without interruption; rather, each of the
three episodes was separated by a month.
Von Loh also argues that common sense dictates treating
multiple incidents of statutory rape as a single harm when
they occur in the context of a consensual relationship. We
disagree. Von Loh may consider it an abstraction, but the
law deems minors incapable of consent. Therefore, we de-
cline to accept Von Loh’s position and hold that the district
court’s decision to treat his multiple offenses as separate
harms under § 3D1.2(b) was appropriate.
And as a last alternative, Von Loh contends that the
district court erred by not grouping his stipulated offenses
with his offense of conviction pursuant to U.S.S.G.
§ 3D1.2(c). This decision, he maintains, led the district court
to double count his conduct when it calculated his sentence.
He claims that the double counting occurred when the
district court imposed a three-point combined offense level
enhancement, pursuant to U.S.S.G. § 3D1.4, on top of a
five-point enhancement for his having engaged in a pattern
of prohibited sexual conduct, pursuant to U.S.S.G.
§ 4B1.5(b)(1). He stipulated to the § 4B1.5(b)(1) enhance-
No. 04-2462 7
ment, but argues that the court should have avoided the
§ 3D1.4 enhancement by grouping his offenses pursuant to
§ 3D1.2(c).
Von Loh’s claim is based upon a misreading of §§ 3D1.2(c)
and 4B1.5(b)(1). Section 3D1.2(c) provides that counts
should be grouped when they involve substantially the
same harm and when “one of the counts embodies conduct
that is treated as a specific offense characteristic in, or
other adjustment to, the guideline applicable to another of
the counts.” U.S.S.G. § 3D1.2(c). The application note to this
subsection clarifies the point with an example. It states,
“[W]hen conduct that represents a separate count, e.g.,
bodily injury or obstruction of justice, is also a specific
offense characteristic in or other adjustment to another
count, the count represented by that conduct is to be
grouped with the count to which it constitutes an aggravat-
ing factor.” U.S.S.G. § 3D1.2, cmt. n. 5. Von Loh committed
multiple acts of statutory rape. Repetition of the conduct,
however, is not a specific offense characteristic for those
counts. Therefore, § 3D1.2(c) is not implicated.
Furthermore, the enhancement that the district court
imposed pursuant to § 4B1.5(b)(1) for Von Loh’s having en-
gaged in a pattern of prohibited sexual conduct was irrele-
vant to the decision to treat his offenses as separate harms.
This is because the process for determining a base offense
level under Chapters Two and Three of the Guidelines is
unrelated to the process for calculating an enhancement
under Chapter Four. Section 4B1.5(b)(1) states:
§ 4B1.5 Repeat and Dangerous Sex Offender
Against Minors
(b) In any case in which the defendant’s instant offense
of conviction is a covered sex crime, neither § 4B1.1
nor subsection (a) of this guideline applies, and the
defendant engaged in a pattern of activity involving
prohibited sexual conduct:
8 No. 04-2462
(1) The offense level shall be 5 plus the offense
level determined under Chapters Two and
Three.
U.S.S.G. § 4B1.5(b)(1) (emphasis added). The word “plus”
indicates that the Sentencing Commission intended that the
repeat sex offender enhancement be imposed in addition to
calculations made pursuant to §§ 2A3.2 and 3D1.4. There-
fore, the district court did not err in deciding not to group
his conduct pursuant to § 3D1.2(c).
III. Conclusion
For the reasons stated above, we AFFIRM the district
court’s sentence.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-2-05