United States v. Long, Douglas

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1721
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DOUGLAS LONG,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 03 CR 40065—Michael M. Mihm, Judge.
____________
ARGUED FEBRUARY 22, 2005—DECIDED OCTOBER 7, 2005
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Before KANNE, WOOD, and SYKES, Circuit Judges.
WOOD, Circuit Judge. Caught with tens of thousands
of images of child pornography on a personal laptop com-
puter that he kept at work, Douglas Long pleaded guilty to
one count of possession of child pornography and one count
of criminal forfeiture. See 18 U.S.C. §§ 2252A(a)(5)(B),
2253. The district court sentenced Long to 96 months’
imprisonment and criminal forfeiture of specified prop-
erty. In this appeal, Long challenges the district court’s
denial of his motion to suppress evidence (an issue he
reserved in his plea agreement) and his sentence. In de-
termining Long’s sentence, the district court decided to
depart upward by four offense levels beyond the applicable
guideline range. Even though the court used its discretion
2 No. 04-1721
in selecting the degree of its departure, Long’s guideline
range and the extent of that departure were necessarily
influenced by the judge’s understanding that the guidelines
were mandatory. The Supreme Court, however, changed all
that in United States v. Booker, 125 S.Ct. 738 (2005). Long
failed to raise a Sixth Amendment or Apprendi argument to
his sentence below and therefore his appeal is subject to
plain error review. United States v. Paladino, 401 F.3d 471(7th Cir. 2005). Because we cannot determine whether the
district court would have imposed the same sentence under
an advisory guideline scheme, we order a limited remand in
accordance with the procedures outlined in Paladino. In all
other respects, we affirm the judgment of the district court.
I
On the night of July 10, 2003, Long received a call from
John Brockmeier, the district manager of Washington
Inventory Service, where Long worked in Moline, Illinois.
Brockmeier asked Long to meet him at Long’s office. Long
arrived shortly thereafter; he found not only Brockmeier,
but also Detectives David Frank and Kerrie Davis of the
Peoria Police Department and FBI Agent Greg Catey,
waiting for him. The Peoria Police had arranged the
meeting with Brockmeier because the previous day a girl-
friend of one of Long’s employees had given the police two
CDs containing child pornography and told the police that
the CDs belonged to her boyfriend’s boss, whom she identi-
fied as Douglas Long. After conducting an examination of
the CDs and verifying that they contained child pornogra-
phy, the police contacted Brockmeier and arranged for the
unusual evening meeting.
Once Long arrived at his office, Detectives Frank and
Davis opened the conversation (which Long characterizes as
an interview) by telling him that somebody had brought
something illegal to the Peoria Police Department. They
No. 04-1721 3
asked Long whether he knew of any employees such
as those who had recently been fired who might have
wanted to get Long in trouble. During the conversation, the
detectives indicated that the illegal items brought to the
police were “two CDs with something illegal” on them. At no
point, however, did they say that the CDs contained child
pornography.
What happened next in the exchange between Long and
the detectives is a matter of dispute. Detective Frank claims
that before Long gave him permission to search his office
and any computers, including his personal laptop, the
detective asked him if there was anything illegal in
the office and Long replied “to some people it might be.”
Detective Frank then asked what Long meant, and Long
allegedly replied that there were pictures and movies of sex
acts with children. Long took the position that the alleged
conversation containing the admissions about possessing
illegal materials and having files depicting sex acts with
children did not take place prior to his giving consent to
search (and perhaps never took place). What is undisputed
is that Long signed a written consent form that authorized
the police to search his office. The consent form allowed the
officers to remove “whatever documents, items of property
whatsoever, including but not limited to computer hard-
ware, software, and all other external media storage, which
they deem pertinent to their investigation and search said
items . . . .” After signing the form, Detective Davis
searched Long’s office and found 10 CDs. At the same time,
Detective Frank retrieved his forensic laptop, which was
equipped with Encase diagnostic software. (The “Encase
Cybercrime Arsenal” package is sold by a company called
Guidance Software to the law enforcement community; it is
described as a powerful search and diagnostic program. See
http://www. guidancesoftware.com.) Using the Encase
software, the detectives searched the CDs and found movies
and photos of child pornography on them. When Long’s
4 No. 04-1721
laptop was searched at a later date, the detectives found
tens of thousands of images and over a hundred movies of
child pornography on it as well.
After examining the content of the CDs, the detectives
gave Long his Miranda warnings. They then continued
their interview with Long. Long admitted that the CDs that
the anonymous woman had brought to the police were his
and that he had downloaded images of child pornography
from the Internet. He explained that he had been collecting
child pornography for five to six years. Long also admitted
to having inappropriate sexual contact with his daughter.
Once the interview concluded, Long and the agents went
to Long’s home. The agents did not seize or search his home
computer, because they believed Long when he said that he
had used only his laptop to download images. While at his
residence, Long, in the presence of the agents, admitted to
his wife that he possessed child pornography and that he
had had inappropriate sexual contact with their daughter.
Afterwards, Long was taken to the Peoria Police station.
Long filed a motion to suppress the physical evidence
seized from his workplace and his statements, on the
ground that the search of his laptop and the CDs exceeded
the scope of his consent. The district court denied his
motion. The court found that Long “was informed that [the
agents] were there in part to investigate because of allega-
tions of wrongdoing against him and also that the allega-
tions included allegations that there was illegal material
there.” The court found Long’s claim that he did not know
that the police would search the CDs or use forensic
programs to conduct their search of the items to be beside
the point, because Long had been informed of the basis of
the search, the consent form he signed was very broad, and
the form specifically mentioned searching “computer
hardware, software, and all other external media storage.”
After losing his motion to suppress, Long entered a
conditional guilty plea to both counts of the indictment,
No. 04-1721 5
reserving his right to appeal the denial of his motion to
suppress.
On March 18, 2004, the court sentenced Long to 96
months’ imprisonment and 10 years of supervised release.
His sentence was calculated using the 2003 version of
the Sentencing Guidelines. The base level offense for
violating 18 U.S.C. § 2252A(a)(5)(B) is 15. The district court
increased that level by applying the following enhance-
ments: a two-point increase for possession of material
involving prepubescent minors under § 2G2.4(b)(1); a two-
point increase for possession of material that resulted from
the use of a computer under § 2G2.4(b)(3); a four-point
increase for an offense that involved material portraying
sadistic or masochistic conduct under § 2G2.4(b)(4); and a
five-point increase for an offense that involved more than
600 images under § 2G2.4(b)(5)(D), which led to a level 28.
At Long’s sentencing hearing, the court heard arguments by
defense counsel that the addition of § 2G2.4(b)(5), enacted
under the Prosecutorial Remedies and Other Tools to End
the Exploitation of Children Today Act of 2003 (PROTECT
Act), Pub. L. 108-21, 117 Stat. 650, created a redundancy
with section (b)(2) of the same guideline. At the time of
sentencing, a defendant such as Long could receive both a
two-point upward adjustment for having more than ten
images under (b)(2) and additional upward adjustments
for the number of images he possessed under (b)(5). The
potential double counting was later resolved, as of Novem-
ber 1, 2004, through an amendment to the guidelines which
consolidated § 2G2.4 with § 2G2.2 and removed the en-
hancement for 10 or more images. The court correctly
anticipated this change by applying the guideline and then
departing downward two levels to negate its effect.
The total offense level that resulted for Long’s sentence
was 25, after the court deducted three levels for acceptance
of responsibility. With a criminal history category I, he
faced a guidelines range of 57 to 71 months. The judge
6 No. 04-1721
decided to depart upward by four offense levels, which
resulted in a final range of 87 to 108 months.
The judge structured the upward departure by referring
to § 2G2.4(b)(5), which sets forth the following rules for
enhancements:
(A) at least 10 images, but fewer than 150, increase
by 2 levels; (B) at least 150 images, but fewer than 300,
increase by 3 levels; (C) at least 300 images, but fewer
than 600, increase by 4 levels; and (D) 600 or more
images, increase by 5 levels.
§ 2G2.4(b)(5). The judge explained that a four-level upward
departure was appropriate for Long’s sentence because
“if we take the officer’s estimate at 15 to 20,000 [porno-
graphic images] and we reduce it by, let’s be generous,
2,000 possible duplicates, which would be double what his
suggestion was, we’re still talking about 13 to 18,000
different child pornography images. That’s many, many
times more than the 600 that call for an upward adjustment
of 5 levels.” In fact, the choice of four more levels
was consistent with the pattern that the guidelines estab-
lish. The structure of § 2G2.4(b)(5)(D) contemplates an
increase of one offense level every time the quantity of
images doubles after the first increase to 150 images, and
thus the judge could have extrapolated from that pattern
and increased the offense level each time the previous
ceiling of the quantity of images doubled. Doing so would
have resulted in a finding that a 9-level increase over the
base was appropriate for at least 9,600 images but less than
19,200 (or four levels beyond the maximum of five pre-
scribed by § 2G2.4(b)(5)(D)), which is exactly what Long got.
On appeal, Long makes three arguments: first, that the
district court erred in denying his motion to suppress;
second, that the court erred in upwardly departing four
offense levels; and finally, that his sentence is uncon-
stitutional in light of United States v. Booker, 125 S.Ct. 738(2005), and he is entitled to full resentencing.
No. 04-1721 7
II
A
We review legal questions in connection with a district
court’s denial of a motion to suppress de novo, while we
apply the normal deferential “clear error” review for
underlying factual determinations. United States v. Cellitti,
387 F.3d 618, 621 (7th Cir. 2004). Long has essentially
challenged the district court’s finding that the search of his
office and computer fell within the scope of his consent,
noting that a consent search must stay within the bound-
aries of the consent that was given. Florida v. Jimeno, 500
U.S. 248, 251 (1991). The scope of consent is “limited by the
breadth of actual consent, and whether the search remained
within the boundaries of the consent is a question of fact to
be determined from the totality of all the circumstances.”
United States v. Raney, 342 F.3d 551, 556 (7th Cir. 2003)
(quoting United States v. Torres, 32 F.3d 225, 230-31 (7th
Cir. 1994)). In determining the scope of a defendant’s
consent, we apply an objective standard: “what would the
typical reasonable person have understood by the exchange
between the officer and the suspect?” Id. (quotation marks
omitted).
Long argues that no reasonable person would have
expected that the detectives’ request to search his “office”
was meant to include a search of his personal laptop and
CDs with the aid of the Encase diagnostic software installed
on Detective Frank’s forensic laptop. Long argues that he
did not have notice that he was consenting to such an
intrusive search because the police had informed him only
that they were investigating something illegal that was
given to them by someone who might want to get Long in
trouble.
We reject Long’s argument for the simple reason that
the consent form he signed explicitly allowed the agents
to search his office and laptop, with no limitations or
8 No. 04-1721
qualifications. The consent form stated, in relevant part,
that the officers were authorized to remove and search any
documents and property “including but not limited to
computer hardware, software, and all other external media
storage.” Long’s laptop and CDs fit within this definition,
and we observe that it is impossible to search computer
hardware or software without using some type of software.
The fact that the Encase search engine was sophisticated is
of no importance. We agree with the district court’s conclu-
sion that Long “could not reasonably assert at this point
that he didn’t understand that [the police] were going to
search any CDs that they found.” Moreover, the court
credited the testimony of the officers to the effect that Long
was told that “not only were there allegations
of wrongdoing, but allegations that there were illegal
materials in his possession.” This conclusion makes it
unnecessary to decide whether Long admitted prior to
the search to possessing material that contained depic-
tions of adults having sex with children—a point on which
the district court gave Long the benefit of the doubt in
any event. The district court correctly denied Long’s motion
to suppress.
No. 04-1721 9
B
We turn now to Long’s challenges to the district court’s
decision to make a four-level upward departure in comput-
ing Long’s sentence. After Congress passed the PROTECT
Act and before Booker, the courts of appeals were instructed
to review de novo the question whether a departure was
based on a factor that did not advance the objectives of 18
U.S.C. § 3553(a)(2), or that was not authorized by § 3553(b),
or that was not justified by the facts of the case. See 18
U.S.C. § 3742(e). Section 3742(e), however, is one of the two
provisions that the Supreme Court “sever[ed] and excise[d]”
from the guidelines in Booker, in the course of deciding on
the proper remedy for the Sixth Amendment violation it had
found. See Booker, 125 S.Ct. at 764-68. After Booker, all
sentences, including those that are above or below the range
that the guidelines would advise (i.e., those that we would
have described as the result of “departures” in the pre-
Booker world), are to be reviewed for reasonableness. Id. In
fact, however, whether we were conducting the de novo
review called for by the PROTECT Act or a more general-
ized reasonableness review, the result would be the same
for Long. Putting to one side for the moment the question
whether the judge’s range of choice was unduly restricted
by the need he perceived to tie his decisions to the guide-
lines’ framework, we conclude that the district court did not
err (or act unreasonably) in its decision to impose
a sentence above the guideline range that it had calculated,
nor in the degree of its departure.
The district court concluded that an offense level of 25 “is
not an accurate reflection of what [Long’s] sentence should
be.” In deciding how many levels to add, the court relied on
its authority under § 5K2.0(a)(3) to use a circumstance that
“is taken into consideration in determining the guideline
range, if the court determines that such circumstance is
present in the offense to a degree substantially in excess
of . . . that which ordinarily is involved in that kind of
10 No. 04-1721
offense.” In Long’s case, the court found that Long pos-
sessed between 13 to 18,000 images and “[t]hat’s many,
many times more than the 600 that call for an upward
adjustment of 5 levels” under § 2G2.4(b)(5)(D). This is (or
would have been) a legitimate reason for an upward
departure.
The district court thus adequately explained how the
departure was linked to the structure of the guidelines. See
United States v. Hogan, 54 F.3d 336, 342 (7th Cir. 1995)
(“[A] district court must link the extent of departure to the
structure of the guidelines.” (internal quotation marks and
citation omitted)). As we noted earlier, the upward depar-
ture followed, as a practical matter, the pattern of imposing
an additional offense level each time the number of images
doubled from the previous cap. This was one acceptable way
to link the departure to the guidelines. The court ade-
quately explained its reasons for increasing Long’s sen-
tence, and we find no error in either the decision to depart
or the degree of departure.
C
Finally, we consider Long’s challenge that his sentence is
unconstitutional in light of the Supreme Court’s decision in
Booker. In Paladino, we found that our plain error review
in the sentencing context normally will require input from
the district court before we can determine whether a
defendant’s substantial rights have been affected by the
Booker error. See 401 F.3d at 483-84. The only difficult
question here is whether the district court’s decision to
depart upward should direct us instead to the rule an-
nounced in United States v. Lee, 399 F.3d 864 (7th Cir.
2005). In Lee, we recognized that although it is usually
impossible to say whether a district court’s sentence would
have been influenced by the knowledge that the guidelines
are advisory, there are some cases in which “we can be
No. 04-1721 11
confident that none of [the defendant’s] substantial rights
was adversely affected by the district judge’s application of
pre-Booker law.” Id. at 867. In Lee itself, this was plain,
because the judge had sentenced Lee at the statutory
maximum and had expressed regret that he could not go
higher. Lee referred to upward departures as another
possible instance, id. at 866-67. Lee did not, however,
establish a per se rule that plain error is impossible if the
district court departed upwards. As we wrote on the same
day in Paladino, “[a] conscientious judge— one who took the
guidelines seriously whatever his private views—would pick
a sentence relative to the guideline range.” 401 F.3d at 482.
Although we consider it a close call, we have concluded
that a Paladino remand is necessary in this case. As a
responsible district court judge in the pre-Booker era, the
judge here adhered scrupulously to both the guidelines and
the structure of the guidelines in determining the depar-
ture. Freed from the mandatory nature of that structure,
the court will be free to consider the factors outlined in
18 U.S.C. § 3553(a), including those that were specifically
prohibited by the guidelines and those that are not con-
stitutionally prohibited such as race or sex. See, e.g.,
§ 5H1.11 (discouraging courts to factor “[m]ilitary, civic,
charitable, or public service; employment-related con-
tributions; and similar prior good works” in deciding
whether to depart); § 5H1.12 (stating that “[l]ack of guid-
ance as a youth and similar circumstances indicating a
disadvantaged upbringing” are not relevant grounds in
determining whether a departure is warranted).
At Long’s sentencing hearing, the lawyers for both the
government and Long emphasized numbers: the number of
images Long possessed; the method the government used to
calculate the number of images; the number of images that
contained actual pornographic images; the number of
possible duplicate images; and the quantity of images that
contained aggravating circumstances to warrant the
12 No. 04-1721
application of other guidelines. Under advisory guidelines,
defense counsel now has the opportunity to present and
argue a wider range of factors that should be factored into
the calculation and the weight to be accorded each factor.
For example, the judge might take into account his long
history of community service. Because we cannot be certain
that Long’s sentence would be the same under advisory
guidelines, we will follow the Paladino procedure here.
III
We AFFIRM the district court’s denial of Long’s motion to
suppress and the judge’s calculations under the Sentencing
Guidelines. We order a limited REMAND with respect to
his sentence while retaining jurisdiction in accordance with
the procedure outlined in Paladino.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-7-05