United States v. John McLaughlin

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-3255

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOHN MCLAUGHLIN,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:10-CR-01013-1 — Ronald A. Gúzman, Judge.

ARGUED SEPTEMBER 16, 2013 — DECIDED JULY 29, 2014

Before KANNE, ROVNER, and WILLIAMS, Circuit Judges.

ROVNER, Circuit Judge. John McLaughlin pled guilty to one

count of transporting child pornography, in violation of 18

U.S.C. § 2252A(a)(1). He was sentenced to 130 months’ impris-

onment, a fine of $50,000, and 20 years of supervised release.

He challenges his sentence in several respects. We affirm.

2 No. 12-3255

I.

Sometime prior to June 2009, John McLaughlin began

visiting an internet chat room where participants viewed and

shared child pornography. Through his activity on the internet,

McLaughlin accumulated a large collection of child pornogra-

phy that included photographs of adults sexually abusing

pubescent and prepubescent minors, children engaged in

sexual acts with animals, and children engaged in sexual acts

with other children. A December 2009 search warrant of

McLaughlin’s home resulted in a seizure of his computer, an

external hard drive and several dozen DVDs, collectively

containing more than 150 videos and more than 500 photo-

graphs of child pornography.

McLaughlin was charged with four counts of transporting

child pornography, in violation of 18 U.S.C. § 2252A(a)(1); and

one count of possessing child pornography, in violation of 18

U.S.C. § 2252A(5)(B). The government also sought the forfei-

ture of McLaughlin’s computer tower, external hard drive and

DVDs, pursuant to 18 U.S.C. § 2253. McLaughlin pled guilty to

one count of transporting child pornography and agreed to the

forfeiture. In the Presentence Investigation Report (“PSR”), a

probation officer determined that the guidelines range was 151

to 188 months’ imprisonment, based on a total offense level of

34 and a criminal history category of I. The PSR set forth a base

offense level of 22, pursuant to section 2G2.2(a)(2) of the

guidelines. To that base offense level, the PSR added: (1) two

levels under section 2G2.2(b)(2) because the material involved

prepubescent minors and minors who had not yet attained the

age of twelve years; (2) two levels under section 2G2.2(b)(3)(F)

because the offense involved distribution of the material;

No. 12-3255 3

(3) four levels because the “offense involved material that

portrays sadistic or masochistic conduct or other depictions of

violence,” pursuant to section 2G2.2(b)(4); (4) two levels under

section 2G2.2(b)(6) for the use of a computer for the transmis-

sion of the material; and (5) five levels under section

2G2.2(b)(7)(D), because the offense involved more than 600

images. The PSR also afforded a three-level reduction for

acceptance of responsibility under section 3E1.1.

Finally, the PSR contained an extensive analysis of

McLaughlin’s finances, calculating a net worth of more than

$135,000 in cash, annuities and retirement accounts.1 The PSR

concluded that McLaughlin possessed “the financial ability to

make an immediate payment towards restitution and/or a

fine.” R. 64, at 18. The PSR also noted that the statutory

maximum for a fine was $250,000 pursuant to 18 U.S.C. § 3571,

and that the guidelines range was $17,500 to $175,000. The PSR

indicated that the court “shall impose a fine in all cases, except

where the defendant establishes that he is unable to pay and is

not likely to become able to pay any fine,” citing guidelines

section 5E1.2(a). The PSR listed some of the factors that the

court should consider in determining the amount of a fine,

including the cost of confinement, probation and supervised

release. See U.S.S.G. § 5E1.2(d). The PSR included the most

recent monthly costs for imprisonment, community confine-

ment and supervision as set forth by the Administrative Office

of the United States Courts. R. 64, at 20.

1

Excluding retirement accounts, McLaughlin had a net worth of approxi-

mately $120,000.

4 No. 12-3255

In the district court, McLaughlin objected to the four-level

enhancement under section 2G2.2(b)(4) for material that

portrays sadistic or masochistic conduct or other depictions of

violence. He also contended that the guidelines for child

pornography offenses are generally arbitrary and capricious,

that many courts have recognized that section 2G2.2 is flawed,

and that these courts often sentence defendants significantly

below the guidelines range because of these flaws. He main-

tained that he would be unusually susceptible to abuse by

other inmates because of the nature of his conviction, and he

urged the court to adjust his sentence downward on that basis

as well. He argued that the statutory minimum of sixty months

was adequate to address the seriousness of his offense as a

viewer rather than a producer of child pornography. He

opposed an award of restitution for the identified victims of

the crime, contending that there was no evidence that he had

proximately caused harm to the individuals portrayed in the

pornography he possessed. But he was silent on the issue of a

fine. Finally, at his sentencing hearing, he also objected to the

government’s reliance on the “market thesis” as lacking any

basis in fact. He described the market thesis as the theory that

mere consumers of child pornography create a demand for the

production of child pornography. He argued that there was no

empirical evidence to support this theory and that producers

of child pornography committed very different crimes than

mere consumers. Producers, he maintained, were not influ-

enced by consumers to make more child pornography but

would commit their crimes of abusing children whether or not

others wished to purchase or view child pornography.

No. 12-3255 5

The district court adopted the PSR, and agreed that the total

offense level was 34, resulting in a guidelines range of 151 to

188 months’ imprisonment. In fashioning a sentence, the court

differentiated between producers of child pornography and

consumers such as the defendant, acknowledging the great

pain caused to the victims by producers. The court explained

the factors that it considered in determining the sentence and

announced a below-guidelines sentence of 130 months’

imprisonment. After noting that the government had not

sought restitution, the court found that “the defendant has the

funds and sufficient ability to pay a fine, and the Court will

impose a fine of $50,000 in this case, due immediately.” R. 61,

at 37. McLaughlin appeals.

II.

On appeal, McLaughlin objects to the four-level enhance-

ment under section 2G2.2(b)(4) for “material that portrays

sadistic or masochistic conduct or other depictions of vio-

lence.” He also complains that his sentence was based on

speculation and unfounded allegations, that the district court

failed to address his argument regarding his unusual suscepti-

bility to abuse in prison, and that the court failed to articulate

its reasons for imposing a $50,000 fine. He also challenges the

substantive reasonableness of his sentence on two grounds.

Our review of sentencing decisions is limited to whether they

are reasonable, applying the abuse of discretion standard. Gall

v. United States, 552 U.S. 38, 46 (2007); United States v. Anobah,

734 F.3d 733, 736 (7th Cir. 2013); United States v. Aslan, 644 F.3d

526, 531 (7th Cir. 2011). We first must ensure that the district

court committed no significant procedural error. Gall, 552 U.S.

at 51. Procedural errors include, among other things, incor-

6 No. 12-3255

rectly calculating the guidelines range, or failing to explain

adequately the chosen sentence. Gall, 552 U.S. at 51; Anobah,

734 F.3d at 736. We review the district court's interpretation of

the sentencing guidelines de novo. Aslan, 644 F.3d at 531; United

States v. Veazey, 491 F.3d 700, 706 (7th Cir. 2007). We review the

district court's findings of fact for clear error. United States v.

Knox, 624 F.3d 865, 870 (7th Cir. 2010). Sentences that are

within the properly calculated guidelines range are entitled to

a rebuttable presumption of reasonableness. Rita v. United

States, 551 U.S. 338, 341–49 (2007); Anobah, 734 F.3d at 736;

United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).

A.

We begin with the four-level enhancement for material

portraying sadistic or masochistic conduct or other depictions

of violence. McLaughlin contends that the district court’s

application of section 2G2.2(b)(4) amounted to double-counting

because that enhancement was based solely on the age of the

victims, which had already been taken into account by section

2G2.2(b)(2). He acknowledges that sexual penetration of a

prepubescent child by an adult qualifies as violence under

section 2G2.2(b)(4) but contends that only one of the enhance-

ments could be applied because both subsections address the

same harm. His objection fails on multiple levels.

First, as McLaughlin concedes, images portraying sexual

penetration of a minor by an adult would alone qualify for the

section 2G2.2(b)(4) enhancement. See United States v. Myers, 355

F.3d 1040, 1043–44 (7th Cir. 2004) (holding that sexual penetra-

tion of a minor by an adult would necessarily cause pain and

therefore qualify for the section 2G2.2(b)(4) sadism and

No. 12-3255 7

violence enhancement, and collecting cases from other circuits).

Images fitting that description were among those found in the

materials seized from McLaughlin. Second, “double counting

is generally permissible unless the text of the guidelines

expressly prohibits it.” United States v. Vizcarra, 668 F.3d 516,

519 (7th Cir. 2012). There is no such prohibition in section

2G2.2. And we have repeatedly upheld sentences that con-

tained enhancements under both 2G2.2(b)(2) and 2G2.2(b)(4),

albeit in cases where the defendant had not specifically raised

a double-counting objection. See United States v. Meschino, 643

F.3d 1025, 1028 (7th Cir. 2011); United States v. Maulding, 627

F.3d 285, 286 (7th Cir. 2010); United States v. Shrake, 515 F.3d

743, 747 (7th Cir. 2008).

Third, the enhancement in this case was not, as a factual

matter, based solely on the age of the children portrayed. The

government argued in favor of the application of section

2G2.2(b)(4) not only because of images of sexual penetration of

prepubescent minors but also because McLaughlin possessed

images of acts designed to degrade and humiliate the victims.

See United States v. Rodgers, 610 F.3d 975, 978–79 (7th Cir. 2010)

(holding that the 2G2.2(b)(4) enhancement applies not only to

sexual acts likely to cause physical pain but also to sexual

gratification which is purposefully degrading and humiliating,

and to images of conduct which causes mental suffering or

psychological or emotional injury to the victim); United States

v. Turchen, 187 F.3d 735, 739–40 (7th Cir. 1999) (same). Specifi-

cally, the government contended that images of victims forced

to perform bestiality and images of men urinating or ejaculat-

ing on the faces of victims would be considered degrading and

humiliating without reference to the age of the victims in-

8 No. 12-3255

volved. See Turchen, 187 F.3d at 737–40 (finding that an image

of an adult urinating on the face of a child victim qualified for

the section 2G2.2(b)(4) enhancement). McLaughlin’s collection

included all of these types of images.

Moreover, the district court expressly found that the

2G2.2(b)(4) enhancement did not constitute double-counting

because it was possible to apply the 2G2.2(b)(2) increase for

material portraying a prepubescent minor without any

depiction of violence. The court noted that both 2G2.2(b)(2)

and 2G2.2(b)(4) share an element of sexual exploitation of a

child but that age alone was sufficient to apply subsection

(b)(2). The added element of violence was required for subsec-

tion (b)(4). The court also noted that it was applying the

2G2.2(b)(4) enhancement in this case because of images that

portrayed conduct “aimed at degrading the individual.” R. 61,

at 14. Because some of the images possessed by McLaughlin

fell into that category irrespective of the age of the victim, the

court concluded there was no overlap between the two

enhancements and thus no double-counting. McLaughlin’s

objection to the 2G2.2(b)(4) enhancement therefore fails on both

the law and the facts.

B.

McLaughlin next contends that his sentence was based on

speculation and unfounded allegations. First, he complains

that the district court accepted the government’s argument

regarding the market thesis, which he asserts is nothing more

than unfounded conjecture. He describes the market thesis as

the theory that a defendant’s possession and distribution of

child pornography increases the demand for production,

No. 12-3255 9

leading to the sexual exploitation of more children. He asserts

that there is no empirical proof for a causal relationship

between consumption and production of pornography in the

internet age. Contrary to the defendant’s claim, though, the

district court did not rely on the market thesis in setting his

sentence. In responding to defense counsel’s argument about

the market thesis, the district court noted:

As far as the market theory is concerned, I am not of the

opinion that it’s either one or the other, that is, that

either the images would not be produced if there wasn’t

a market or that every time someone uses them the

market is expanded. It seems to me there’s an element

of both here. Part of the motivation for producing these

pictures is showing them to others. … And the fact that

there are so many others out there who want to see

them is a clear motivation. There is at least some truth,

in my opinion, to the market thesis. I don’t believe that

it is a 100 percent accurate description of the effects of

the traders and possessors of these materials, but there

is, in my opinion, some basic truth for it.

We come down to, as almost always in these situations,

deterrence and rehabilitation.

R. 61, at 35. The court then proceeded to fashion a sentence

focused mainly on deterrence and rehabilitation, taking into

account the other factors set forth in 18 U.S.C. § 3553(a).

As these remarks indicate, the court did not reach a

conclusion on the validity of the market theory, much less rely

on it in setting McLaughlin’s sentence. Instead, the court

properly relied on the section 3553(a) factors in determining

10 No. 12-3255

the sentence. Nor is there any reason to conclude that the court

erred in finding “some basic truth” in the market thesis. See

Paroline v. United States, 134 S. Ct. 1710, 1717 (2014) (“The

demand for child pornography harms children in part because

it drives production, which involves child abuse.”). At least

one of the victim impact letters submitted to the court provides

anecdotal support for the theory that consumers of child

pornography sometimes influence producers to abuse more

children. The mother of a child portrayed in images possessed

by McLaughlin reported that her daughter’s “abuser adapted

to serve his market—whatever his audience was looking to

acquire, that’s what happened to her.” R. 64 (attachment). We

emphasize that there is no indication in the record that

McLaughlin personally influenced that particular abuser; that

child’s abuse occurred many years prior to McLaughlin’s

arrest. But that letter supports the idea that consumers of child

pornography influence producers in ways that lead to in-

creased harms to children. See United States v. Blum, 534 F.3d

608, 612 (7th Cir. 2008), abrogated on other grounds by United

States v. Vizcarra, 668 F.3d 516 (7th Cir. 2012) (noting Congress’s

determination that the manufacture and possession of any

child pornography itself feeds the market and increases

demand for it).

McLaughlin next objects that the court relied on an un-

founded observation that, as a consumer, he was just a step

away from committing a contact offense against a child.

According to McLaughlin, there is no empirical support for the

idea that consumers of child pornography are more likely to

commit contact offenses, and in his case, a psychiatrist had

No. 12-3255 11

opined that he presented a very low risk of recidivism. In

discussing the need for deterrence, the court remarked:

Your client’s conduct, his clear, almost gleeful enjoy-

ment of these materials, his solicitation of more materi-

als, his enjoyment of sharing these materials with others

and seeking to have others give him new materials is

not only troubling in the sense that it’s so contrary to

what is decent, it’s troubling in the sense that it’s a clear

motivation that must be with him all the time. And

that’s just a step away from actual engagement in the

abuse of children himself.

R. 61, at 16. Contrary to McLaughlin’s claim, nothing in that

statement indicates that the court concluded that McLaughlin

was likely to commit contact offenses. Instead, the court was

accurately describing McLaughlin’s conduct as a step removed

from contact offenses. A review of the sentencing transcript as

a whole indicates that the court was aware of the psychiatrist’s

report and accounted for the difference between the harms

caused by a consumer versus a producer of child pornography,

expressly noting that “this defendant is not a producer of the

pornographic images.” R. 61, at 34. Thus the court was not

confused about the facts underlying McLaughlin’s conduct and

did not incorrectly assume that McLaughlin was also a

producer or a likely contact offender, as the defendant asserts.

C.

Because McLaughlin did not object to the imposition of a

fine at the time of sentencing, we review the court’s decision to

levy a fine for plain error only. United States v. Riley, 493 F.3d

803, 810 (7th Cir. 2007); United States v. Bauer, 129 F.3d 962, 964

12 No. 12-3255

(7th Cir. 1997). In order to reverse for plain error, we must find

(1) error (2) that is plain, and (3) that affects the defendant's

substantial rights. United States v. Olano, 507 U.S. 725, 732

(1993); Aslan, 644 F.3d at 540. An error is plain if it is clear or

obvious. Olano, 507 U.S. at 734; Aslan, 644 F.3d at 540. “An

error ‘affects the defendant's substantial rights’ when it is

prejudicial, that is, when it has affected the outcome of the

district court proceedings.” Aslan, 644 F.3d at 540–41 (quoting

Olano, 507 U.S. at 734).

McLaughlin contends that the court erred by not ade-

quately explaining the basis for the fine. We find no error, plain

or otherwise, in the district court’s decision. The court adopted

the PSR, which contained an extensive basis for the imposition

of a fine. “[T]he rule in this circuit is that express or specific

findings regarding each of the relevant factors to be considered

before imposing a fine are not required.” Bauer, 129 F.3d at 966.

If the court adopts the PSR, the defendant does not object to

the PSR, the PSR contains an adequate basis to support the

fine, and it is clear that the court considered the relevant

statutory factors, there is no error. See Bauer, 129 F.3d at 968.

First, in this case, the PSR set forth in great detail McLaughlin’s

ability to pay a fine, concluding that he had more than $130,000

available to pay a fine. Second, the PSR noted that the fine was

required in every case except where the defendant demon-

strates an inability to pay. McLaughlin does not contend that

he is unable to pay. Third, the PSR included the factors the

court should consider in setting the amount of the fine,

including the costs of incarceration. The PSR noted that the

Administrative Office of the United States Courts currently

estimated the monthly cost of confinement to be $2357.

No. 12-3255 13

McLaughlin was sentenced to 130 months’ imprisonment, a

time frame expected to cost the government approximately

$306,410. A fine of $50,000 was well within the guidelines

range, far less than the cost of imprisonment, and within

McLaughlin’s well-documented ability to pay. There is no

obvious error in the district court’s assessment, much less one

that affects McLaughlin’s substantial rights.

D.

We may quickly dispense with McLaughlin’s remaining

arguments, namely that the court failed to address his argu-

ment regarding his susceptibility to abuse in prison, and that

the court ordered a substantively unreasonable sentence.

McLaughlin contended that he would be unusually susceptible

to abuse in prison because he had been convicted of a crime

involving child pornography. But he did not raise any facts

specific to himself personally that would render him more at

risk in prison than any other defendant convicted of an offense

involving child pornography. Because his argument is a

generic challenge that would apply to every defendant

convicted of a child pornography offense “rather than one

tailored to his unique characteristics and circumstances, it is

not one that the district judge must explicitly address.” United

States v. Schmitz, 717 F.3d 536, 542 (7th Cir. 2013). Our review

of the PSR reveals no special vulnerability for McLaughlin

based on his personal characteristics. The court was not

required to expressly address this generic argument in mitiga-

tion.

McLaughlin also maintained that his sentence was substan-

tively unreasonable because the United States Sentencing

14 No. 12-3255

Commission recently released a report to Congress calling for

revisions to section 2G2.2, and because many courts recognize

flaws in that particular guideline and sentence defendants

below the guidelines range to account for these perceived

flaws. See United States Sentencing Comm'n, P. Saris et al.,

Federal Child Pornography Offenses (2012) (hereinafter

“Report”).

The Eleventh Circuit recently addressed and rejected a very

similar argument from a defendant challenging the continued

validity of section 2G2.2 in light of the Report:

We agree with the government that the Commission's

2013 report does not render the non-production child

pornography guidelines in § 2G2.2 invalid or illegiti-

mate. Rather, the Commission recommends that Con-

gress enact legislation providing the Commission with

express authority to amend [§ 2G2.2]” The publication

of the 2013 report does not change the statutory sen-

tencing scheme, the applicable sentencing guidelines, or

the binding precedent about § 2G2.2 in this Circuit.

United States v. Cubero, — F.3d —, —, 2014 WL 2595781, *9

(11th Cir. June 11, 2014). In Cubero, the court commented that,

although the district court was certainly free to consider the

Report in choosing the ultimate sentence, the Report did

nothing to invalidate section 2G2.2. Nor did the court’s use of

section 2G2.2 render Cubero’s sentence procedurally or

substantively unreasonable because the absence of empirical

evidence is not an independent ground that compels the

invalidation of a guideline. Cubero, 2014 WL at *9. See also

United States v. Grigsby, 749 F.3d 908, 910–12 (10th Cir. 2014),

No. 12-3255 15

petition for cert. filed, — U.S.L.W. — (U.S. July 10, 2014) (No. 14-

3146) (rejecting a similar categorical challenge to guideline

2G2.1 based on the Report). We are inclined to agree with our

sister circuits. Congress and the Commission are responsible

for altering the guidelines, and the absence of an empirical

basis does not render a guidelines provision per se unreason-

able or irrational. Grigsby, 749 F.3d at 911 (citing United States

v. Miller, 665 F.3d 114, 121 (5th Cir. 2011), cert. denied, 132 S. Ct.

2773 (2012)). The district court was free to consider the Report

but using the guideline in its current form did not render

McLaughlin’s sentence substantively unreasonable. “[D]istrict

courts must treat the Guidelines as the starting point and the

initial benchmark.” Kimbrough v. United States, 552 U.S. 85, 108

(2007). Contrary to McLaughlin’s contention, then, the district

court was obligated to consider the properly calculated

guidelines sentence in determining the appropriate sentence.

The court was clearly aware that it was free to reject the

guidelines sentence; the court in fact sentenced McLaughlin

twenty-one months below the low end of the guidelines range.

In short, there is nothing substantively or procedurally amiss

with McLaughlin’s sentence. Rita, 551 U.S. at 341–49; Anobah,

734 F.3d at 736; Mykytiuk, 415 F.3d at 608 (sentences that are

within the properly calculated guidelines range are entitled to

a rebuttable presumption of reasonableness). For all of these

reasons, the judgment of the district court is

AFFIRMED.