UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAVID C. HOGUE, Defendant-Appellant.
No. 19-2354
United States Court of Appeals For the Seventh Circuit
Decided May 24, 2021
Submitted April 13, 2020
Before SYKES, Chief Judge, and HAMILTON and ST. EVE, Circuit Judges.
Appeal from the United States District Court for the Southern District of Illinois. No.
SYKES, Chief
The grand jury issued a superseding indictment charging Hogue with three crimes: the original charge of receiving child pornography; a second count of receiving child pornography for the downloads while on pretrial release; and destruction of evidence with intent to obstruct an FBI investigation,
Hogue pleaded guilty to all three counts. The district judge sentenced him to 20 years in prison, well below the advisory range under the Sentencing Guidelines. Hogue now seeks to unwind his guilty plea to Count 2 based on a misstatement by the judge at the change-of-plea hearing about the effect of the
These arguments are new on appeal, so our review is limited to correcting plain error. Here, plain-error review requires Hogue to establish both a clear or obvious error and “a reasonable probability that, but for the error, he would not have entered the [guilty] plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). He has not carried this burden. Although the judge mistakenly stated the maximum penalty on Count 2 during the plea colloquy, Hogue has not even asserted—much less established—that he would not have pleaded guilty but for this error. And the record confirms his understanding of the offense and an adequate factual basis for the plea.
Finally, Hogue challenges his sentence on procedural grounds, arguing that the judge improperly relied on an investigator‘s testimony about his risk of committing a sex offense against a child. We find no error and affirm the judgment across the board.
I. Background
In October 2015 the FBI opened an investigation to identify persons sharing and receiving child pornography on the peer-to-peer file-sharing network Gnutella. An FBI task force in the Southern District of Illinois eventually discovered that an IP address associated with David Hogue had downloaded 16 files of child pornography from the network. In September 2016 agents executed a search warrant at Hogue‘s home in Madison County and seized several electronic devices. Forensic analysis of Hogue‘s desktop computer revealed numerous images and videos containing child pornography and depicting children ranging in age from infancy to about 12 years old.
Patrick Parker, a deputy sheriff in nearby Calhoun County who was assigned to the FBI task force, interviewed Hogue after the search. Hogue admitted that he used the software application LimeZilla to download child pornography from the Gnutella network. He acknowledged that he had been downloading child pornography for several years. After the interview Hogue repeatedly contacted Deputy Parker by phone to discuss the investigation and his addiction to child pornography.
Two months later the monitoring software revealed that Hogue had again used LimeZilla to download and view child pornography. It also showed that Hogue repeatedly ran a computer program to erase his hard drive in an effort to cover up his new crimes. Agents seized Hogue‘s computer, and a forensic examination confirmed what the monitoring software had shown. The forensic review revealed multiple videos containing child pornography. Hogue told Deputy Parker that he was sorry and that he had tried to overcome his child-pornography addiction but had relapsed.
In February 2018 the grand jury issued a superseding indictment charging Hogue with two counts of receiving child pornography—the original charge from 2016 and a second count for the downloads detected by the monitoring software in 2017. Because Hogue committed the second offense while on pretrial release, Count 2 included a sentencing enhancement under
Hogue pleaded guilty to all three crimes. In a written stipulation of facts, he admitted that he knowingly downloaded and viewed child pornography on the dates charged in the superseding indictment—the date in 2016 as originally charged and also on the date in 2017 while he was on pretrial release. He also admitted that while on release, he had deleted and wiped multiple files from his hard drive.
At the change-of-plea hearing, Hogue confirmed that he had read both the original and superseding indictments and had fully discussed the charges with his attorney. The judge confirmed that Hogue understood each of the rights he was waiving. She then asked the prosecutor to state the elements of the crimes and the applicable penalties. For Count 1 the prosecutor correctly stated the applicable penalty: a minimum of 5 years and a maximum of 20 years in prison.
As for Count 2, the prosecutor described the elements and maximum penalty as follows:
The elements of [the] offense charged in Count 2 are also receipt of child pornography, but it‘s additional elements in that it is a crime[] which creates a sentencing enhancement that was—occurred while the defendant was on pretrial release.
So in addition to the four elements I just read, which I‘ll go over again, element one would be that on or about May the 16th of 2017, while the defendant was on pretrial release pursuant to an order from this Court dated March 8, 2017, in Case No. 3:17-CR-NJR, and said order notified the defendant of potential effect of committing an offense while on pretrial release, he knowingly committed the offense of receipt of child pornography in that he received a computer video file entitled “MRVINE_C0020_090729.1918.avi“; that that video file contained child pornography; that the defendant knew that one or more persons depicted was under the age of 18; and it was shipped in interstate commerce.
The penalty for that offense as it‘s specific to occurring while on pretrial release is not more than 10 years’ imprisonment as it is a felony, a $250,000 fine, or both; not more than three years’ supervised release; $100 special assessment. Any term of imprisonment that the Court would order under this statute shall run consecutive to any other terms of imprisonment that the Court would order on Counts 1 or 3.
The judge sought clarification, asking the prosecutor if receiving child pornography while on pretrial release “does not have the five-year minimum [for receiving child pornography] because it is charging pretrial release and must be consecutive?” The prosecutor responded, “Correct, your Honor,” and then elaborated:
[I]n charging the receipt while on pretrial release, it adds two additional elements[,] basically that he commits any felony[,] in this case being receipt while on pretrial release. It‘s a maximum with no minimum of 10 years’ imprisonment. But any time the Court deems, whether it would be a day or up to 10 years on that offense, would have to run consecutive to any time the Court would give on the other counts.
The judge and Hogue‘s attorney accepted this statement of the maximum penalty for Count 2. The judge then addressed Hogue directly: “Count 2 can be anything up to 10 years, but it must run consecutive to Count 1. Do you understand that?” He answered, “Yes.”
The prosecutor and the judge were wrong about the effect of
The judge next asked the prosecutor to summarize the factual basis for the crimes. Regarding Count 2, the prosecutor explained that the computer-monitoring program and the follow-up forensic review both revealed that Hogue had downloaded and received child pornography and had also deleted and wiped the downloaded files from his hard drive multiple times. The judge asked Hogue if he agreed with this summary, and he said, “Yes.” The judge also inquired, “Has anyone made any prediction or promised you as to what your sentence will be in this case?” Hogue responded that his attorney had “said about maybe like [5] to 20 maybe.” The judge then accepted Hogue‘s guilty plea.
At the sentencing hearing, the judge again recited the applicable penalties, only this time she correctly described the effect of the
Turning to the Sentencing Guidelines, the judge accepted the defense attorney‘s argument that Hogue should receive the full three-level credit for acceptance of responsibility despite his obstructive conduct while on pretrial release. With that exception, the judge accepted the Guidelines calculations in the presentence report and arrived at an advisory sentencing range of 262–327 months in prison.
The prosecutor then asked Deputy Parker for his assessment of Hogue‘s likelihood to commit a contact sex offense against a child. Hogue‘s attorney objected, arguing that Parker was not qualified to give an expert psychiatric opinion. The prosecutor responded that he was not eliciting expert testimony but instead was asking the officer to evaluate the risk based on his experience investigating cases of this type. The judge overruled the objection, stating that she understood “the role of this witness and his background.” But she rephrased the question, asking the witness for his “opinion about the need to protect the public.” Parker explained that he did not view Hogue as a serious threat to the public because he was not “the type” who would stalk children at a playground or abduct a child. He added, however, that given Hogue‘s sexual interest in children, if he were “given an opportunity [to abuse a child] in a private setting, I do believe he would take the opportunity.”
The prosecutor argued for a below-Guidelines sentence of 13.5 years—10 years concurrent on each count, plus 3.5 years consecutive for the
The judge then reviewed the sentencing factors in
II. Discussion
Hogue challenges the validity of his guilty plea on Count 2 based on the judge‘s misstatement during the plea colloquy of the maximum penalty on that count. He also argues that the judge failed to properly advise him of the elements of the offense and did not ensure an adequate factual basis for his plea. Finally, Hogue challenges his sentence, claiming that the
A. Withdrawal of Guilty Plea on Count 2
Hogue did not move to withdraw his guilty plea in the district court, so our review is limited to correcting plain error. See
1. Knowledge of the Maximum Penalty
Before accepting a defendant‘s guilty plea, the judge must “inform the defendant of, and determine that the defendant understands, ... any maximum possible penalty, including imprisonment, fine, and term of supervised release.”
To recap, the judge took the prosecutor‘s lead and viewed the
The underlying offense of receiving child pornography carries a prison term of “not less than 5 years and not more than 20 years.”
To unwind his guilty plea, however, Hogue must do more than point to an obvious error. He must establish a reasonable probability that he would not have pleaded guilty but for the error. See Williams, 946 F.3d at 971. But Hogue has “never asserted,” let alone established, “that he would have insisted on going to trial (or held out for a better deal) if he had been aware” of the actual effect of
Indeed, the record suggests the opposite conclusion: when he was caught downloading child pornography on pretrial release, Hogue apologized to Deputy Parker, saying that he tried to overcome his child-pornography addiction but had relapsed. A trial would have made little strategic sense given this frank confession of continued criminal conduct and the unassailable evidence of guilt captured by the monitoring software and the forensic review. Hogue has not established a reasonable probability that he would not have pleaded guilty but for the judge‘s error about the statutory maximum for Count 2.
Rule 11 also requires the judge to “inform the defendant of, and determine that the defendant understands, ... the nature of each charge to which the defendant is pleading.”
The judge committed no error, much less a plain error. During the plea colloquy, she asked the government to state the elements of a
A few cases from other circuits hint at the possibility of latent complexity in the statute‘s culpability element as it applies to electronic media.1 But no precedent in this circuit suggests that the term “knowingly receives” has a unique or special meaning in this context. Hogue acknowledged during the plea colloquy that he thoroughly discussed the charges with his counsel. And he was fully informed of the nature of the charge in a manner consistent with our precedent. The judge asked him directly if he had any questions about the elements of the offense, and he said, “no.”
Shifting his focus to a separate Rule 11 requirement, Hogue repackages this same argument as a challenge to the factual basis for his plea. See
B. Sentencing Error
Finally, Hogue asks us to vacate his sentence based on the judge‘s decision to admit Deputy Parker‘s testimony about the risk that Hogue would sexually abuse a child. This is a claim of procedural error, so our review is de novo.
Hogue‘s argument mirrors his objection to the officer‘s lack of qualifications as an expert witness. See
Relatedly, Hogue argues that the judge drew an improper inference about public safety from the officer‘s testimony about the two prior episodes of sexual misconduct involving children. This argument is completely meritless. It was entirely appropriate for the judge to consider Hogue‘s past sexual misconduct against children in assessing his risk to the public. Hogue admitted—to the probation officer as well as to Deputy Parker—that he groped an adolescent girl and exposed himself to (and sexually fantasized about) his four-year-old niece. This uncontested history was highly relevant to the judge‘s evaluation of the danger Hogue poses to children, and she reasonably considered it.
AFFIRMED