United States v. Shane Viren

In the
United States Court of Appeals
For the Seventh Circuit
No. 15-2078
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SHANE A. VIREN,
Defendant-Appellant.
Appeal from the United States District Court for the
Central District of Illinois.
No. 4:13-cr-40057-SLD-1 — Sara Darrow, Judge.
ARGUED JUNE 1, 2016 — DECIDED JULY 5, 2016
Before WOOD, Chief Judge, and BAUER and FLAUM, Circuit
Judges.
BAUER, Circuit Judge. Defendant-appellant, Shane A. Viren
(“Viren”), entered a guilty plea to three counts of sexual
exploitation of a minor, violations of 18 U.S.C. § 2251(a), and
one count of possession of child pornography, a violation of 18
U.S.C. § 2252A(a)(5)(B). Although the plea agreement limited
Viren’s sentence to a maximum of 360 months’ imprisonment,
the district court rejected the plea agreement and sentenced
2 No. 15-2078
Viren to 600 months (the statutory maximum) each on the
three counts of sexual exploitation of a minor, and 240 months
(also the statutory maximum) on the possession of child
pornography count, to be served concurrently. Viren appeals
his sentence, arguing that the district court abused its discre-
tion by failing to explain why it rejected his initial written plea
agreement. He also argues that the district court erred in
raising his criminal history category from II to V.1 We reject
Viren’s arguments and affirm his sentence.
I. BACKGROUND
In March 2012, an adult woman reported to the Rock Island
Police that Viren had raped her three years earlier, that he
possessed child pornography, that he possessed nude photo-
graphs of her, and that he was using the photographs as
blackmail to force her to continue to have sex with him. Based
on this information, Rock Island Police executed a search
warrant at Viren’s apartment on March 24, 2012, and seized
over 40 digital devices. The police also interviewed Viren on
the day of the search. He admitted downloading child pornog-
raphy from the internet and estimated that his collection
contained thousands of photographs and dozens of videos.
1
As Viren conceded at oral argument, his third argument (that his 2002
state conviction for sexual assault of an adult victim could not provide a
basis for a sentence enhancement under 18 U.S.C. § 2252A(b)(2) based on
the language of the statute) has been soundly rejected by the United States
Supreme Court in Lockhart v. United States, – U.S. –, 136 S. Ct. 958, 968–69
(2016). It need not be addressed here.
No. 15-2078 3
Police conducted a forensic examination of Viren’s digital
devices and found a minimum of 876 images and 130 videos.
One digital folder contained 334 images of infants and pre-
pubescent females with their genitals exposed. Some of these
images were sexually explicit photographs of Viren’s infant
daughter (age three months) and of Viren’s fiancee’s two
toddler nieces (ages two and three years old). At least ten
images were of young children in bondage. Two images
entailed bestiality.
Police arrested Viren on June 17, 2013. After being given
Miranda warnings, Viren admitted that he took the sexually
explicit photographs of his daughter and his fiancee’s nieces.
He also admitted that he rubbed, kissed, and licked the genitals
of all three girls. He told police he had used the photographs
of the girls for his own sexual pleasure and gratification.
A grand jury indicted Viren with three counts of sexual
exploitation of a minor in violation of 18 U.S.C. § 2251 (one
count for each of Viren’s daughter and Viren’s fiancee’s
two nieces) and with one count of possession of child pornog-
raphy in violation of 18 U.S.C. § 2252A. Viren entered into
a written plea agreement with the government; in exchange
for entering a guilty plea to all four counts, Viren’s total
sentence would not exceed a maximum of 360 months
(30 years) pursuant to Federal Rule of Criminal Procedure
11(c)(1)(C) (“Rule 11(c)(1)(C)”). On April 3, 2014, Viren
withdrew his not guilty plea and entered a guilty plea. The
district court recognized the maximum sentence contemplated
by the plea agreement, but warned Viren that it could reject
4 No. 15-2078
the plea agreement. To ensure Viren understood that the
district court was not bound by the agreed-upon sentence, it
asked Viren: “So, do you understand that if I choose not to
follow that term of this plea agreement and I sentence you to
something above 30 years, that I will give you the opportunity
to withdraw your plea of guilty? Do you understand that?”
Viren replied, “Yes.” The district court explained that it wanted
to review the presentence report (“PSR”) prior to determining
Viren’s sentence. The district court set the sentencing hearing
for August 14, 2015.
At the sentencing hearing on August 14, 2015, and after
reviewing the PSR, the district court rejected the written plea
agreement, stating: “I’m notifying the parties that I’m rejecting
the terms of the plea agreement; I will not accept the 360-
month cap.” Viren asked for and was given a continuance to
September 4, 2014, to consider how to proceed. At the
September 4, 2014, hearing, the district court stated it had
rejected the written plea agreement “due to [the court’s]
disagreement with the 11(c)(1)(C) component, that being the
cap of 360 months.” The district court granted Viren’s motion
to withdraw his guilty plea.
On February 19, 2015, Viren again withdrew his not guilty
plea and entered an “open” guilty plea (“open” because there
was no written plea agreement and no negotiated sentencing
range). At that time, the district court advised Viren of the
possible penalties for each charge: a minimum of 25 years to a
maximum of 50 years in prison for each of counts 1, 2 and 3,
and a minimum of 10 years to a maximum of 20 years in prison
for count 4. Sentencing was set for May 7, 2015.
No. 15-2078 5
The PSR correctly represented the minimum and maximum
sentences, assigned a total offense level of 43, and increased
Viren’s criminal history category from II to V pursuant to
§ 4B1.5 of the United States Sentencing Commission Guidelines
Manual. The PSR also included other pertinent information
about Viren, including: Viren sustained a 2002 state conviction
for raping a woman who suffered from cerebral palsy and was
confined to a wheelchair, for which he served four years in
prison; Viren was diagnosed with pedophilia; and Viren’s
fiancee reported that he “would not have sex with [her] unless
he was simultaneously viewing child pornography.” As a
result, the PSR concluded the Guidelines range was life in
prison.
Prior to the second sentencing hearing, Viren submitted a
sentencing memorandum. He agreed with the PSR setting his
criminal history category at V. He objected to his offense level.
Viren agreed that the Guidelines range was life, but he argued
that he serve the statutory minimums on each count concur-
rently.
At the second sentencing hearing on May 7, 2015, Viren did
not object to any information contained in the PSR relevant to
this appeal. The district court heard arguments from Viren and
the government, thoroughly considered the information in the
PSR, thoroughly considered the § 3553(a) factors, and sen-
tenced Viren to 600 months (the statutory maximum) each on
counts 1, 2, and 3, and 240 months (also the statutory maxi-
mum) on count 4, to be served concurrently.
Viren appeals the district court’s rejection of his written
plea agreement containing the incarceration limit of 360
6 No. 15-2078
months and the increase in his criminal history category from
II to V.
II. DISCUSSION
We review the district court’s rejection of Viren’s plea
agreement for abuse of discretion only. United States v. Martin,
287 F.3d 609, 621 (7th Cir. 2002) (citations omitted). A criminal
defendant has “no absolute right to have a guilty plea ac-
cepted.” Santobello v. New York, 404 U.S. 257, 262 (1971)
(citations omitted). Rather, a district court has the sound
discretion to reject a plea agreement “if it [finds] the agreement
would undermine the sentencing guidelines or [would] not
adequately take into account the defendant’s relevant con-
duct.” Martin, 287 F.3d at 624 (citations omitted).
When a plea agreement contains a “specific sentence or
sentencing range” under Rule 11(c)(1)(C), a district court “may
accept the agreement, reject it, or defer a decision until the
court has reviewed the [PSR].” Fed. R. Crim. P. 11(c)(3)(A). If
a district court rejects such a plea agreement, the court “must
… on the record and in open court … : (A) inform the parties
that the court rejects the plea agreement; (B) advise the
defendant personally that the court is not required to follow
the plea agreement and give the defendant an opportunity to
withdraw the plea; and (C) advise the defendant personally
that if the plea is not withdrawn, the court may dispose of the
case less favorably toward the defendant than the plea agree-
ment contemplated.” Fed. R. Crim. P. 11(c)(5).
In addition, a district court “must explain why it finds the
agreement objectionable” when it rejects a plea agreement.
United States v. Kraus, 137 F.3d 447, 453 (7th Cir. 1998). But, the
No. 15-2078 7
district court must limit its comments to the plea agreement
itself; the district court’s “license to speak about what it finds
acceptable and unacceptable—to suggest an appropriate
sentencing range—is at an end.” Id. at 453–54 (citations
omitted). In other words, the district court is precluded from
opining on hypothetical plea deals and participating in plea
negotiations. Fed. R. Crim. P. 11(c)(1); Kraus, 137 F.3d at 452
(citations omitted) (cataloging cases).
We reject Viren’s argument that the district court “gave no
justification whatsoever” for rejecting the plea. On the con-
trary, at the August 14, 2015, sentencing hearing, the district
court stated: “I’m notifying the parties that I’m rejecting the
terms of the plea agreement; I will not accept the 360-month
cap.” The district court plainly stated that it was rejecting the
plea agreement because it was unwilling to accept the sentenc-
ing limit as agreed to by the parties.
In addition, we view the district court’s comments in the
context of the entire course of proceedings. At Viren’s initial
change of plea hearing on April 3, 2014 (prior to the rejection
on August 14, 2015), the district court warned Viren that it did
not have to accept his guilty plea. The district court asked
Viren: “So, do you understand that if I choose not to follow
that term of this plea agreement and I sentence you to some-
thing above 30 years, that I will give you the opportunity to
withdraw your plea of guilty? Do you understand that?” Viren
replied, “Yes.” The district court also explained that it wanted
to review the PSR prior to determining Viren’s sentence.
The district court warned Viren that if it wanted to sentence
him to a term greater than 360 months, then it would reject his
8 No. 15-2078
guilty plea. When it rejected Viren’s guilty plea, the district
court stated: “I will not accept the 360-month cap.” The reason
for the rejection is clear: the district court found the sentencing
limit insufficient. If it had found a 360-month or less sentence
to be sufficient, it would have sentenced Viren to any term up
to or including 360 months. The district court did not abuse its
discretion because it explained that it rejected Viren’s plea
agreement due to the sentencing limit.2 Any further opining or
discussion by the district court might have invited error, as
occurred in United States v. Kraus, 137 F.3d 447 (7th Cir. 1998).
Next, we review the district court’s determination of
Viren’s criminal history category for plain error. United States
v. Zuniga-Lazaro, 388 F.3d 308, 316 (7th Cir. 2004) (citations
omitted). Because Viren failed to object to the determination of
his criminal history category in the district court (and specifi-
cally agreed that his criminal history category was V), the error
must affect his “substantial rights” to warrant resentencing. Id.
(citations omitted).
Here, the PSR calculated Viren’s total offense level to be 43,
prior to applying any enhancement for recidivist conduct
under § 4B1.5 of the Sentencing Guidelines. The PSR increased
Viren’s criminal history category from II to V under § 4B1.5,
2
We also reject Viren’s argument made at oral argument that the district
court should have provided guidance on what it thought would have been
an acceptable sentence. Viren has waived this argument by not presenting
it in his appellate briefs. United States v. Blackman, 199 F.3d 413, 416 n.4
(7th Cir. 1999) (citation omitted). Moreover, this kind of opining by the
district court is explicitly prohibited. Fed. R. Crim. P. 11(c)(1); Kraus, 137
F.3d at 452 (citations omitted) (cataloging cases).
No. 15-2078 9
based upon his 2002 state rape conviction. Viren did not object
to his criminal history category being V, either in his sentenc-
ing memorandum or at any oral argument regarding sentenc-
ing. The district court adopted the findings and calculations of
the PSR.
Section 4B1.5 of the Sentencing Guidelines provides that if
the instant conviction is a “covered sex crime,” and the
defendant has “sustain[ed] at least one [prior] sex offense
conviction,” then § 4B1.1 does not apply. Then, § 4B1.5 pro-
vides its own Guidelines for determination of offense level, the
correlating statutory maximum terms of imprisonment that
correlate for each offense level, and the mechanism for deter-
mining the criminal history category. Viren’s instant convic-
tions for sexual exploitation of a minor are “covered crimes”
that bring him potentially within the ambit of § 4B1.5, as they
are punishable under chapter 110 of title 18 of the United States
Code. U.S.S.G. § 4B1.5(a) (2015); U.S.S.G. § 4B1.5(a) (2015),
Commentary, n. 2.
But, Viren’s rape conviction does not qualify as a prior “sex
offense conviction” to trigger the § 4B1.5 enhancement in the
criminal history category. The commentary to § 4B1.5 provides:
“‘Sex offense conviction’ (I) means any offense described in 18
U.S.C. § 2426(b)(1)(A) or (B), if the offense was perpetrated
against a minor; and (II) does not include trafficking in, receipt
of, or possession of, child pornography.” U.S.S.G. § 4B1.5,
Commentary, n. 3(A)(ii) (emphasis added). Regardless of the
nature of the prior sex offense conviction, to put a defendant
into the ambit of § 4B1.5, the prior sex offense must have been
committed against a minor. Here, Viren’s prior sex offense
conviction was committed against an adult. Therefore, the
10 No. 15-2078
district court did commit error; “given the straightforward
language of the guideline [and its commentary], the error here
was plain in the sense of being ‘clear or obvious.’” Zuniga-
Lazaro, 338 F.3d at 316, (quoting United States v. Shearer, 379
F.3d 453, 456 (7th Cir. 2004)).
However, resentencing is not required because the calcula-
tion error did not affect Viren’s substantial rights. Had the
district court set Viren’s criminal history category at level II, his
offense level would still have been 43. An offense level of 43
with a criminal history category of II carries a Guidelines
sentence of life. U.S.S.G. Ch. 5, Pt. A (2015) (sentencing table).
In other words, whether Viren’s criminal history category is set
at level II or V, his offense level (43) still carries a Guidelines
sentence of life. Had the district court applied a level II
criminal history category, Viren’s “sentencing range would
have been unaffected.” Zuniga-Lazaro, 388 F.3d at 317. Because
the Guidelines sentence remains the same whether Viren has
a criminal history category of II or V, Viren’s substantial rights
were not affected by the district court setting his criminal
history category at V.
III. CONCLUSION
For the foregoing reasons, we AFFIRM Viren’s sentence.