United States v. Ohlinger, John D.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
July 12, 2005
Before
Hon. JOEL M. FLAUM, Chief Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 03-3380
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Western
District of Wisconsin.
v.
No. 02 CR 150
JOHN D. OHLINGER,
Defendant-Appellant. John C. Shabaz,
Judge.
ORDER
Before the Court is defendant-appellant John D. Ohlinger’s petition for rehearing.
Pursuant to a written plea agreement, on March 30, 2003, Ohlinger pled guilty to
transporting in interstate commerce a visual depiction of a minor engaged in sexually
explicit conduct, in violation of 18 U.S.C. § 2252(a)(1). His offense of conviction
consisted of e-mailing a photograph of a naked child to an undercover agent on
February 16, 2002. The district court also considered as relevant conduct defendant’s
possession of numerous depictions of children engaged in sexually explicit conduct on
his personal computer. The district court departed upward and sentenced defendant
to 360 months of imprisonment, the statutory maximum.
Following a limited remand pursuant to United States v. Paladino, 401 F.3d 481(7th Cir. 2005), the district judge reported that he would have imposed the same
sentence under an advisory guidelines regime. Thereafter, we affirmed Ohlinger’s
sentence as reasonable. In his petition for rehearing, defendant correctly points out
that we have not ruled on two claimed errors in the district court’s application of the
No. 03-3380 Page 2
sentencing guidelines. Ohlinger raised these issues in his initial appellate brief, filed
prior to this Court’s decision in United States v. Booker, 375 F.3d 508 (7th Cir. 2004).
We therefore grant the petition for rehearing in order to address the district court’s
application of the sentencing guidelines. Because both parties have extensively briefed
the guidelines issues, neither further briefing nor additional argument is necessary.
We have examined the record at length and find no error in the district court’s
application of the sentencing guidelines. Accordingly, we reaffirm Ohlinger’s sentence.
The first sentencing argument presented by Ohlinger is that the district court
erred in assigning him three criminal history points for a 1983 conviction for oral
copulation and molestation of a child under the age of fourteen. Defendant contends
that this conviction is too remote in time to count in his criminal history. The
guidelines provide that a defendant’s criminal history should include “any prior
sentence of imprisonment exceeding one year and one month, whenever imposed, that
resulted in the defendant being incarcerated . . . within fifteen years of the defendant’s
commencement of the instant offense.” U.S.S.G. § 4A1.2(e)(1). “Commencement of the
instant offense” includes relevant conduct, which is defined as “all acts and omissions
. . . caused by the defendant . . . that occurred during the commission of the offense of
conviction, in preparation for that offense, or in the course of attempting to avoid
detection or responsibility for that offense.” U.S.S.G. §§ 4A1.2, cmt. n.8; 1B1.3(a)(1).
Ohlinger was last incarcerated for the 1983 conviction on October 25, 1986. The
question under the guidelines is whether Ohlinger commenced the instant offense (or
committed any relevant conduct) on or before October 25, 2001.
The district court found that Ohlinger’s relevant conduct began on October 6, 2001
when he created an online profile on a Yahoo! website titled “All Things Sexually
Accepted.” Ohlinger identified himself on the website as a “pedophile truck driver”
interested in “picture trading” and posted a photograph of himself naked. Agent Eric
Szatkowski of the Wisconsin Department of Justice, posing as a female pedophile, later
began e-mail communications with defendant through this website. Defendant
contends that the district court erred in considering his postings to the chat room as
relevant conduct, arguing that they were legal and had no relation to the offense of
conviction.
Relevant conduct determinations are factual findings that we review with great
deference to the district court, reversing only in the case of clear error. United States
v. Breland, 356 F.3d 787, 795 (7th Cir. 2004). The district court did not clearly err in
finding that Ohlinger’s October 6, 2001 posting was “in preparation for” his later
offense of transmitting child pornography across state lines. Ohlinger had to find a
willing recipient in order to transmit the illegal image; he did so through his posting
to the chat room in which he identified himself as a pedophile interested in meeting
a female pedophile. That Agent Szatkowski did not respond to Ohlinger’s posting until
several months later does not render his initial message any less relevant to the
ultimate offense of conviction.
No. 03-3380 Page 3
Moreover, defendant’s assertion that his web activity was not illegal by itself does
not preclude its consideration as relevant conduct in determining whether the offense
of conviction commenced within the fifteen-year period. See U.S.S.G. § 1B1.3, cmt. n.1
(“The principles and limits of sentencing accountability under this guideline are not
always the same as the principles and limits of criminal liability.”); United States v.
Gabel, 85 F.3d 1217, 1223 (7th Cir. 1996) (preparatory acts such as opening several
bank accounts and creating a shell corporation could qualify as relevant conduct to the
crime of illegal structuring of transactions for the purpose of determining criminal
history).
Ohlinger adopts a different strategy in his reply brief, arguing that the 1983
conviction cannot be counted toward his criminal history because the district court also
considered that offense as “relevant conduct” to his offense of conviction. According to
Ohlinger, the district court considered his 1983 offense as evidence that he had
“engaged in a pattern of activity involving the sexual abuse or exploitation of a minor,”
which resulted in a five-level increase to his offense level under § 2G2.2(b)(4). He
therefore contends that considering that offense in calculating his criminal history
constitutes impermissible double counting.
We need not consider this argument because defendant raised it for the first time
in his appellate reply brief. United States v. Collins, 361 F.3d 343, 349 (7th Cir. 2004).
In any event, we note that the district court did not err in counting the 1983 conviction
both toward defendant’s criminal history and his offense level. The guidelines
expressly instruct the sentencing judge to do so. See U.S.S.G. § 2G2.2(b)(4), cmt. n.2
(“Prior convictions taken into account under subsection (b)(4) are also counted for
purposes of determining criminal history points pursuant to Chapter Four, Part A
(Criminal History).”).
Ohlinger also contends that the district court’s decision to depart upward was
erroneous. The court departed upward one criminal history category, from V to VI, on
the ground that defendant’s criminal history did not adequately reflect the seriousness
of his past criminal conduct or the likelihood that he would commit other crimes. In
support of this departure, the district court mentioned a 1981 conviction for child
molestation, which fell outside the fifteen-year time limit, as well as sexual abuse
described in a 1987 complaint. Defendant argues that the departure decision was
erroneous because the court used the same underlying facts to apply the five-point
enhancement for pattern of abuse under § 2G2.2(b)(4). He also asserts more generally
that his criminal history category was adequate and not outside the heartland of child
pornography cases.
Despite the government’s contention to the contrary, defendant adequately
preserved the departure issue for our consideration on appeal. We review the decision
to depart upward de novo. United States v. Griffith, 344 F.3d 714, 718 (7th Cir. 2003).
No. 03-3380 Page 4
We conclude that this departure was not erroneous. Application note 2 to § 2G2.2
specifically provides that “an upward departure may be warranted if the defendant
received an enhancement under subsection (b)(4) but that enhancement does not
adequately reflect the seriousness of the sexual abuse or exploitation involved.”
Moreover, the district court provided proper and adequate justification for the
departure. In announcing its decision to depart, the district court observed:
The Court has examined the entire file in this matter and found
the actions of the defendant most egregious, perhaps more so than
any similar case which the Court has had an opportunity to
preside over. There is some hardcore [sic] here that is frightening
and the Court is of the opinion that the circumstances are indeed
egregious.
(Sent. Tr. at 31.) The district court also concluded that “defendant’s criminal history
is significantly more serious than most defendants in the Criminal V area.” (Id. at 33.)
Finally, the court noted that defendant posed a clear danger to the community and
“must be incapacitated by confinement for as long as possible.” (Id. at 31.)
These reasons provide a sound basis for upward departure. See U.S.S.G. § 4A1.2,
cmt. n.8 (“If the court finds that a sentence imposed outside [the fifteen-year] time
period is evidence of similar, or serious dissimilar, criminal conduct, the court may
consider this information in determining whether an upward departure is warranted
under § 4A1.3.”); § 4A1.3(a) (permitting court to consider “prior sentence[s] not used
in computing the criminal history category” in deciding to depart); § 4A1.3(e)
(permitting consideration of “prior similar adult conduct not resulting in a criminal
conviction”); Griffith, 344 F.3d at 719-20 (affirming upward departure in sentence for
pornography distribution where defendant’s photographs were the worst the judge had
seen in 35-year legal career and defendant posed serious risk of future dangerousness);
United States v. Turchen, 187 F.3d 735, 742 (7th Cir. 1999) (affirming upward
departure in child pornography case where defendant’s criminal history and
unsuccessful rehabilitation suggested risk of recidivism).
Because we have determined that the district court did not err in applying the
guidelines and that the sentence of 360 months is reasonable, the judgment of the
district court is AFFIRMED.