United States v. David Hogue, 998 F.3d 745

Background

FBI investigation of Gnutella file-sharing identified Hogue’s IP as downloading child pornography; search in Sept 2016 recovered numerous images/videos.
Hogue was indicted for receipt of child pornography (18 U.S.C. § 2252A(a)(2)(A)), released on bond, and required to install monitoring software on his devices.
Monitoring software later detected additional downloads while Hogue was on pretrial release and attempts to delete/wipe files; a superseding indictment added Count 2 (receipt while on pretrial release with a § 3147(1) enhancement) and Count 3 (obstruction via destruction of evidence, § 1519).
Hogue pleaded guilty to all counts after a plea colloquy in which the judge (following the prosecutor) misstated the maximum penalty for Count 2 as 10 years rather than the correct maximum of 30 years (20 + up to 10 under § 3147(1)); Hogue acknowledged understanding and pleaded guilty.
At sentencing the judge correctly described the § 3147(1) enhancement and imposed a below-Guidelines 20-year sentence: 10 years concurrent on Counts 1 and 3, plus a consecutive 10-year term on Count 2 under § 3147(1).
On appeal Hogue argued (1) his plea to Count 2 should be unwound for the Rule 11 error about the statutory maximum and for an inadequate explanation of elements/factual basis, and (2) sentencing was procedurally flawed because the court relied on a deputy’s testimony about risk to children. The Seventh Circuit affirmed.

Issues

Issue	Hogue's Argument	Government's Argument	Held
Whether Hogue may withdraw his guilty plea to Count 2 based on the judge’s misstatement of the maximum penalty under § 3147(1) at plea colloquy	Plea invalid because judge misstated the maximum (said 10 yrs) and thus failed to inform him of the true maximum	Error was obvious but Hogue must show a reasonable probability he would not have pleaded but for the error; record shows no such showing and strong evidence against him	Affirmed — misstatement was plain error but Hogue failed to show reasonable probability he would have insisted on trial or declined plea without the error
Whether the court failed to advise Hogue of the nature/elements of § 2252A(a)(2) and failed to ensure an adequate factual basis for the plea	Judge did not explain what "knowingly receive" means for electronic files; factual basis insufficient	Prosecutor recited elements consistent with Seventh Circuit pattern instruction; Hogue discussed charges with counsel and admitted conduct in stipulation and colloquy	Affirmed — no Rule 11 error; elements and factual basis were adequately presented
Whether admission and consideration of Deputy Parker’s testimony (risk opinion and prior misconduct) at sentencing was procedural error	Testimony included impermissible expert opinion and improper inference from prior misconduct	Rules of evidence (Rule 702) do not strictly apply at sentencing; judge limited weight and considered admitted prior misconduct appropriately	Affirmed — no procedural error; judge permissibly considered the testimony and prior admissions

Key Cases Cited

United States v. Dominguez Benitez, 542 U.S. 74 (2004) (establishes that Rule 11 plain-error reversal requires reasonable probability defendant would not have pleaded guilty but for the error)
United States v. Williams, 946 F.3d 968 (7th Cir. 2020) (applies plain-error review to post-plea challenges)
United States v. Dowthard, 948 F.3d 814 (7th Cir. 2020) (defendant must assert he would have gone to trial to show prejudice from plea colloquy error)
United States v. Johnson, 643 F.3d 545 (7th Cir. 2011) (Federal Rules of Evidence do not strictly govern sentencing proceedings)
United States v. Romm, 455 F.3d 990 (9th Cir. 2006) (discusses what control over electronic images suffices for receipt)
United States v. Ramos, 685 F.3d 120 (2d Cir. 2012) (discusses receipt when images are viewable in temporary internet files)
United States v. Pruitt, 638 F.3d 763 (11th Cir. 2011) (holds that intentional viewing/acquiring on a computer constitutes knowing receipt)