United States v. Lange, Glenn

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2787
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GLENN LANGE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 764—David H. Coar, Judge.
____________
ARGUED APRIL 7, 2006—DECIDED APRIL 28, 2006
____________
Before FLAUM, Chief Judge, and POSNER and
EASTERBROOK, Circuit Judges.
FLAUM, Chief Judge. Glenn Lange plead guilty to dis-
tributing child pornography. He claims that he amassed his
collection of pornographic photographs because his
“Asperger’s-like” disorder made him unable to control his
compulsion to do so. He requested a downward departure on
the basis of diminished capacity, which the district court
denied. After reviewing the sentencing factors in 18 U.S.C.
§ 3553(a), the district court sentenced Lange to 55 months
imprisonment, a sentence within the advisory Guidelines
range. He appeals, claiming that the sentence was unrea-
sonable. For the following reasons, we now affirm.
2 No. 05-2787
I. Background
Glenn Lange, a resident of Lyons, Illinois, sent several
e-mails containing child pornography images to an under-
cover FBI agent in December 2002. The FBI located him
and obtained a warrant to search his residence in August
2003. Lange was present during the search, and admitted
to agents that he was obsessed with child pornography
since obtaining his personal computer; indeed he claimed it
was the first thing he looked for when he got online.
He gave agents consent to use his online identity. When
they did so, they discovered a number of e-mails that Lange
had written. In these e-mails, Lange described fantasies
that he had about a nine-year-old relative. Interviews with
the relative revealed that Lange had never actually harmed
her.
The agents sent Lange’s computer for forensic analysis.
The analysis revealed approximately 28,000 images,
roughly 20,000 of which were child pornography. The
majority of the child pornography on the computer depicted
girls and boys between the ages of five and twelve. Some of
the images were sadistic in nature.
In early 2004, Lange was charged with nine counts
of knowingly distributing images of child pornography
and one count of knowingly possessing child pornography.
On March 31, 2004, he plead guilty to one count of dis-
tributing child pornography.
During the sentencing proceedings, Lange argued for a
reduced sentence on a number of grounds, including
diminished capacity. Under the 2003 version of the Guide-
lines, § 5K2.13 stated:
A sentence below the applicable guidelines range
may be warranted if (1) the defendant committed the
offense while suffering from a significantly reduced
mental capacity; and (2) the significantly reduced
mental capacity contributed substantially to the com-
No. 05-2787 3
mission of the offense. Similarly, if a departure is
warranted under this policy statement, the extent of the
departure should reflect the extent to which
the reduced mental capacity contributed to the com-
mission of the offense.
The application note to § 5K2.13 defines “significantly
reduced mental capacity” as having significantly im-
paired ability to (1) appreciate the wrongfulness of the
behavior constituting the offense or to exercise the power of
reason; or (2) control behavior that the defendant knows is
wrongful. Lange has never argued that he did
not appreciate the wrongfulness of his behavior or that
he could not exercise the power of reason; he instead
bases his argument on the control prong of the diminished
capacity test.
The defense presented evidence that Lange qualified for
this downward departure because he suffered from a
syndrome akin to Asperger’s Syndrome. Asperger’s Syn-
drome is essentially a mild form of autism. Lange argues
that he suffers from this disorder or some variant of it
and that the disorder impaired his ability to control his
compulsion to amass his large collection of child pornogra-
phy.
In support of this theory, the defense called two wit-
nesses: Dr. Steven Rothke and Dr. Eliezer Margolis. Dr.
Margolis was Lange’s treating psychologist since August
2003, when the FBI investigation prompted him to seek
treatment. Although Margolis did not perform cognitive
testing on the defendant, Margolis testified that he believed
that Lange lacked the ability to control his pornography-
collecting behavior. Margolis believed that Lange suffered
from an “Asperger’s-like” syndrome, which impaired his
ability to function and monitor himself cognitively and
volitionally. Margolis testified that these deficits, when
mixed with computer technology, allowed Lange to become
4 No. 05-2787
hypnotically drawn into “the internet world.” During this
state, Margolis testified that Lange would lose the sense of
himself and become unable to comprehend beyond that
moment in time. He also testified that in his opinion, the
fantasy e-mails were not about a relative, but were fictional
role-play that Lange obtained from a website. Moreover,
Margolis stated that he did not believe that Lange should
be classified as a pedophile.
Margolis further elaborated his theory when he testi-
fied as a rebuttal witness. He reiterated his claim that
Lange had an executive functioning impairment as a re-
sult of an “Asperger’s-like” syndrome. That executive
functioning impairment, Margolis testified, caused Lange
under certain conditions to “ha[ve] a disconnection among
the parts of his self, and that executive functioning
would describe the ability to keep those parts of
one’s self integrated in relation to one another so they could
all work together.” The district court then directly asked Dr.
Margolis whether Lange suffered from a cognitive impair-
ment, which prior testimony had established would include
the brain’s control mechanisms. Margolis responded that
although Lange had not tested positive for cognitive
disabilities, such tests do not always detect problems with
executive functioning.
The defense also offered the testimony of Dr. Steven
Rothke. Rothke testified that he had evaluated Lange at the
request of Dr. Margolis. His evaluation, he stated, revealed
nothing inconsistent with Margolis’s diagnosis
of “Asperger’s-like” syndrome. Dr. Rothke also testified that
he believed that tests administered by the government’s
psychological expert did not indicate that Lange was a
sexual predator. Most relevant to the dispute on appeal,
Rothke testified on cross-examination that his tests re-
flected that Lange was “cognitively intact” and that his
executive functioning, including his ability to con-
trol behavior, was not impaired.
No. 05-2787 5
The government called its own psychologist, Dr. Diana
Goldstein. She testified that her independent evaluation
of Lange caused her to believe that his cognitive func-
tions were intact and that he could control his behavior.
Goldstein disagreed with Margolis’s “Asperger’s-like”
diagnosis, and noted that Lange did not meet the criteria
for Asperger’s Syndrome as laid out in the most recent edi-
tion of the American Psychiatric Association’s Diagnostic
and Statistical Manual of Mental Disorders, the
most common reference tool for psychological disorders. She
noted that Lange displayed strong nonverbal communica-
tion skills, which is quite uncharacteristic of a person
suffering from Asperger’s Syndrome. She also testified that
she had diagnosed Lange with non-exclusive pedophilia
based on the investigative file in the case.
After hearing the testimony, the district court stated,
“Despite Dr. Margolis’s testimony, I do not find that there
is any evidence of a cognitive impairment. The testing
indicated that, and indeed the testimony was that, there
was not cognitive impairment and that Mr. Lange can
control himself.” The court then refused to depart down-
ward based on diminished capacity, stating that the
evidence was “woefully inadequate” to support such a
departure. The court also refused the defendant’s other
arguments for a downward departure, because it be-
lieved, after reviewing the § 3553(a) factors, that “the
guidelines have it about right.” The court sentenced Lange
to the high end of the Guidelines range, 55 months.
II. Discussion
Lange’s argument on appeal is essentially that the
district court misapprehended his diminished capacity
argument. He focuses quite a bit on the district court’s
comments that indicate that the court doubted that Lange’s
disorder fits the psychological community’s current defini-
tion of Asperger’s Syndrome. The district court did make
6 No. 05-2787
such a statement; indeed the statement is arguably correct,
as even Lange concedes. The issue in this case, Lange
points out, is not whether he suffers from a defined disor-
der, but whether he was impaired in his ability to control
his actions.
We agree that this is the proper focus of the inquiry under
the Sentencing Guidelines. Unlike Lange, however, we
believe that the district court fully apprehended the
relevant issue when ruling against Lange’s diminished
capacity arguments. The court’s questions and statements
during the two-day sentencing hearing dispel any notions to
the contrary.1 Judge Coar understood and acknowledged Dr.
1
The following are direct quotes from Judge Coar during the
sentencing hearings:
[Spoken after dismissing the defense’s first witness, Dr.
Rothke] “Folks, let me just try to bring this back to the center
because I think we’re getting far afield.
“Under our system of jurisprudence it is not criminal
behavior nor is it properly a factor for sentencing to have
thoughts about criminal conduct. It’s action that is pun-
ished. Let me remind everybody as to what the issue is. The
defendant has moved for a departure based on diminished
mental capacity.
“As I understand the defendant’s position, the defendant
has the burden of showing that he had a significantly im-
paired capacity to control his conduct at the time of the
offense. That’s the issue. And that capacity has to be a
contributing cause of the offense. That’s what we’re talking
about here. And there is a lot of very interesting psychological
information that’s been provided. Most of it has nothing to
do with that issue. So if we could confine ourselves to the
issue at hand, that would be helpful.”
[Questioning Dr. Margolis] “You heard me articulate what
the psychological issue was, whether or not he had an
impaired capacity to control his conduct at the time of the
(continued...)
No. 05-2787 7
Margolis’s testimony that Lange’s mental constitu-
tion affected his ability to control his pornography-collecting
behavior, yet disagreed. That alone does not indicate that
he misapprehended the nature of the argument.
Lange claims that two cases support his position in this
matter. They do not. The first, United States v. Cun-
ningham, 429 F.3d 673 (7th Cir. 2005), merely holds that a
1
(...continued)
offense. That’s the question.
“All right. Now, I read your report, but let me ask you to state
succinctly what has Asperger’s Syndrome to do with that
question.”
[Questioning Dr. Margolis during rebuttal testimony] “The
United States Sentencing Commission defines what we’re
addressing here is whether or not Mr. Lange has a sig-
nificantly reduced mental capacity as including both a
cognitive and volitional impairments which are connected
to the offense.
“Now, as I understand the testing, indeed as I understand
all of the expert testimony, Mr. Lange suffers from no
cognitive impairment. Do you agree with that?”
[While making his sentencing ruling] “With respect to the
departure for diminished capacity, I indicated early on during
these proceedings what the standard was. I don’t think that
there is any serious dispute with respect to what the stan-
dards are. The evidence here is I think woefully short of
meeting the requirements of the guidelines. And as I said,
significantly reduced mental capacity includes both cognitive
and volitional impairments which are connected to the
offense.
“Despite Dr. Margolis’s testimony, I do not find that there
is any evidence of cognitive impairment. The testing indicated
that, and indeed the testimony was that there was
no cognitive impairment and that Mr. Lange can control
himself. . . .”
8 No. 05-2787
district court must address a defendant’s psychological
problems if they are offered by the defense as a mitigating
factor during sentencing. The district court in this case
not only addressed Lange’s condition, but held two days
of hearings on the matter. See United States v. Brock,
433 F.3d 931, 937 (7th Cir. 2006) (“Unlike in Cunningham,
in this case the district court’s reasoning is supported by the
record.”) The second, United States v. Lighthall, 389 F.3d
791 (8th Cir. 2004), affirmed a downward departure where
the district court found that the defendant’s crime was the
result of obsessive behavior. That situation is not parallel
to the case before us.
The sentence is also reasonable in light of the factors
set out under 18 U.S.C. § 3553(a). Judge Coar both acknowl-
edged and considered those factors, and he coherently
articulated which affected his sentencing decision. Lange
has not rebutted the presumption of reasonableness for his
sentence, which was within the Guidelines range. See
United States v. Mykytiuk, 415 F.3d 606 (7th Cir. 2005).
III. Conclusion
The district court’s sentence is AFFIRMED.
No. 05-2787 9
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-28-06