UNITED STATES of America, Plaintiff-Appellee, v. John V. NANIA, Defendant-Appellant.
No. 12-2028.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 28, 2013. Decided July 30, 2013.
824 F.3d 824
Mr. Brock also challenges his sentence. He contends that the district court erred in concluding that his three convictions for possessing machineguns qualified as “violent felonies” under the
Without repeating Miller‘s analysis of the involved arguments and the extensive and evolving case law on the issue, the reasoning of Miller applies equally to mere possession of a machinegun. Sawed-off shotguns and machineguns are both dangerous and can be used to commit violent crimes, of course. But the same is true of explosives, and ACCA specifies that only crimes involving the “use of explosives” count as violent felonies.
Accordingly, Mr. Brock‘s convictions are AFFIRMED but his sentence is VACATED and the case is REMANDED to the district court for resentencing.
Carol A. Brook, Attorney, Office of the Federal Defender Program, Chicago, IL, Kristin J. Carpenter (argued), Attorney, Federal Defender Program, Rockford, IL, for Defendant-Appellant.
Before MANION, KANNE, and TINDER, Circuit Judges.
KANNE, Circuit Judge.
For more than three years, John V. Nania inflicted lasting torment on several young girls: he sexually abused them and documented that abuse in pornographic images. When authorities discovered Nania‘s appalling actions, they arrested him and charged him with multiple crimes. In Illinois state court, Nania was convicted for the sexual abuse itself. In federal court, he pled guilty to producing child pornography. At his federal sentencing hearing, Nania argued that the conduct involved in these state and federal offenses overlapped to such an extent that the sentences should run concurrently. The district court disagreed, however, and ordered that Nania serve his federal prison term consecutively to his state sentences. Nania now challenges that decision. After review, we find no error and affirm Nania‘s sentence.
Cases involving the sexual abuse of children require care and discretion. We understand that need, and, in light of it, have left our descriptions vague when possible. Specific details are included only as needed to resolve the case.
In January 2009, A.M., a fourteen-year-old girl from Rockford, Illinois, told a worker at a children‘s center that she had been sexually abused for the past three years. (Presentence Investigation Report, “PSR,” at 3.) The aggressor was John V. Nania. A.M. knew Nania through his twin daughters, whom A.M. had babysat for several years. (Id.) The children‘s center reported A.M.‘s abuse to the Rockford Police Department, and investigations began. (Id.) Within two weeks, officers searched Nania‘s home and recovered a computer containing many images of child pornography. (Id.) The police also found a VHS cassette that depicted Nania sexually abusing his stepdaughter, S.M. (Id. at 5-6.) When investigators subsequently interviewed S.M., she explained that Nania had sexually exploited her for years and that she had tried to commit suicide to escape the abuse. (Id. at 6.) As investigations continued, several more victims emerged. (Id.)
Eventually, these discoveries led to Nania‘s arrest. He was later convicted multiple times in Illinois state court. (Id. at 12-14.) First, on December 8, 2009, a jury found Nania guilty of three counts of criminal sexual assault (Counts Four through Six in the state proceedings). (Id. at 12-13.) All three counts related to Nania‘s abuse of S.M., his stepdaughter, and included a count for penetrating her vaginally when she was under the age of eighteen (Count Four). (Id. at 13.) For each count, Nania received a separate sentence of fifteen years in custody and two years of supervised release. (Id. at 12.) These sentences would run consecutively, for a total of forty-five years in custody and six years of supervised release. (Id.)
Then, on June 25, 2010, at the conclusion of a bench trial, an Illinois state judge found Nania guilty of three more crimes: one count of predatory criminal sexual assault of a child and two counts of aggravated criminal sexual abuse (Counts One through Three in the state proceedings). (Id.) These convictions related to Nania‘s abuse of A.M., his daughters’ babysitter. (Id. at 12-13.) Important for our purposes, none of these counts charged Nania with vaginally penetrating A.M. (Id.) Nania received another twenty years in prison for the predatory criminal sexual assault count and two seven-year sentences for the aggravated criminal sexual abuse counts. (Id. at 12.) The seven-year terms would run concurrently to each other but consecutively to the twenty-year sentence. (Id.) Thus, these crimes added another twenty-seven years in state prison to Nania‘s initial, forty-five-year sentence.
After securing these convictions, the State of Illinois dropped its remaining charges against Nania. (Id.) His aggregate sentence for the state offenses totaled seventy-two years. Furthermore, Illinois law limits the amount of credit Nania can receive for good behavior to approximately 15% of his sentence. See
Despite these formidable state sentences, law enforcement authorities were not finished with Nania. Federal prosecutors had also taken up his case. In May 2009, a federal grand jury indicted Nania for two counts of producing child pornography and two counts of possessing child pornography. (R. 30-2 at 8-11.) On December 21, 2011, Nania pled guilty to Count Two of the indictment, which
The district court held Nania‘s sentencing hearing on April 16, 2012. (Id. at 370.) During the hearing, the court adopted the factual findings of the PSR. (R. 31 at 31.) The court also adopted the PSR‘s calculations for the sentence recommended by the
The last remaining question was whether that federal sentence should run concurrently or consecutively to Nania‘s state sentences. Nania argued that
II. ANALYSIS
Fair, appropriate sentences for criminal defendants—this goal ranks among the central purposes of the U.S. Sentencing Guidelines.
That potential recommendation is the precise issue Nania raises. First, he argues that the district court incorrectly
A. Procedural Error
Nania and the government disagree over which subsection of
In contrast, subsection (b) creates a subclass of cases in which the Guidelines affirmatively recommend the format of the defendant‘s sentence. Specifically, subsection (b) advises courts that a defendant‘s prior, undischarged prison term should run concurrently with the term for the instant offense, if the conduct behind the two terms sufficiently overlaps. Prison sentences meet this standard when the undischarged term has “resulted from another offense that is relevant conduct to the instant offense of conviction,” and that relevant conduct “was the basis for an increase in the offense level” for the offense of conviction.
Of course, given the advisory nature of the Sentencing Guidelines, a district court has no obligation to impose a concurrent sentence, even if
1. Legal standards for U.S.S.G. § 5G1.3
The First Circuit has aptly described
a. General review of the Sentencing Guidelines
When district judges consult the Guidelines, they come away with recommended punishments for criminals. The central recommendation is about the sentence‘s length. The Guidelines suggest a range of possible sentences—referred to as the “Guidelines range“—and recommend that the imposed sentence fall within it. In each case, the “Guidelines range” is determined using a grid that takes into account two variables: the defendant‘s criminal history and the “offense level” of the current crime. See
Calculating a defendant‘s offense level begins simply enough: the U.S. Sentencing Commission has assigned each crime a “base offense level” between one and forty-three. U.S. Sentencing Commission, An Overview of the Federal Sentencing Guidelines 1, http://www.ussc.gov/About_the_Commission/Overview_of_the_USSC/Overview_Federal_Sentencing_Guidelines.pdf (last visited July 23, 2013). This number reflects the “seriousness” of the crime. Id. Then, things get more complicated. The offense level will increase or decrease based upon individual circumstances. Trespassing, for instance, has a base offense level of four, but two more points are added if the defendant possessed a dangerous weapon while committing the crime.
When determining whether to adjust a defendant‘s offense level, a court examines what the Guidelines call “relevant conduct.” See
After making all the adjustments mandated by the Guidelines, the court has determined the defendant‘s total offense level. From there, the court will calculate the defendant‘s criminal history, which assigns defendants points based upon the extent of their criminal records. See
b. Standards specific to U.S.S.G. § 5G1.3
As we return to
Notice the wording of the above requirements: “all the conduct involved in the state offense” must have satisfied each requirement. In other words, the requirements of
Several circuits have weighed in on defining “offense” and have adopted a broad approach—one that seems to define a single “offense” as all convictions based on the same transaction or occurrence. See United States v. Hull, 632 F.3d 331, 337-38 (6th Cir.2011) (discussing the approach of other circuits). The parties did not brief this issue, and we decline to decide the question definitively today. Strong arguments support various definitions, and, for that reason, we think it proper to wait for a full presentation on the issue. Thus, for now, we will use the definition we view as most favorable to the defendant—treating each individual count of prior convictions as a separate “offense.” Yet even with this circumscribed definition, Nania‘s arguments still falter. The same would be true under the approach of our sister circuits, since their methodology is even less generous toward defendants. Therefore, if we ultimately decide to adopt the definition used by our colleagues, the outcome of this case will still comport with that approach.
2. Application of § 5G1.3 to Nania‘s case
Employing our limited reading of “offense,” we now address whether any of Nania‘s state offenses met the requirements of
a. Relevant conduct
The first question is whether all the conduct that led to any of Nania‘s state
Our quarrel instead arises from the district court‘s conclusion that the materials before it did not meet Nania‘s burden. The PSR, which Nania cited in the district court, explains why Nania‘s state convictions were relevant conduct to his federal offense: the state crimes were “part of the instant [federal] offense.” (PSR at 12) (emphasis added). Given the broad definition of “relevant conduct,” we fail to see how anything “part of the instant offense” is not also “relevant conduct.” In fact, the Sentencing Guidelines themselves equate the two terms. See
Of course, the district court was free not to accept the recommendations of the PSR and instead find that the state convictions were not part of the instant offense. But that decision would have had other ramifications. Specifically, deciding that Nania‘s state crimes were not part of the instant offense would have impacted Nania‘s criminal history calculation. The Guidelines provide that, “[a] sentence imposed after the defendant‘s commencement of the instant offense, but prior to sentencing on the instant offense, is a prior sentence if it was for conduct other than conduct that was part of the instant offense.” Id. (emphasis added). In other words, conduct that Nania was prosecuted for in state court had to be one of two things: a “prior sentence” (and thus criminal history) or “part of the instant offense” (and thus relevant conduct). See id.
The PSR took the latter approach and found that Nania‘s state sentences were part of the instant offense. The PSR therefore excluded these offenses from Nania‘s criminal history. The district court formally adopted the calculations of the PSR, (R. 31 at 31), but then proceeded, in practice, to adopt the calculations only in part. The court agreed that the state convictions were not criminal history but also found that they were not relevant conduct. The court reasoned that the timeframes for the state and federal crimes did not begin and end on precisely the same dates, which arguably prevented the state crimes from being entirely relevant to the federal offense. That theory, however, does not square with the plain language of the Guidelines. If the state sentences were not relevant conduct, then they must have been criminal history. See
Because the district court claimed to have adopted the PSR‘s calculations, we will proceed under the PSR‘s decision to call the prior sentences relevant conduct,
b. Offense level increase
Because all of Nania‘s state offenses satisfied the first requirement (relevant conduct), our decision whether
i. A.M.
At Nania‘s bench trial for his abuse of A.M., a state judge found him guilty of one count of predatory criminal sexual assault of a child and two counts of aggravated criminal sexual abuse. (PSR at 12-13.) These three counts corresponded to three specific abusive actions. The predatory criminal sexual assault conviction resulted from Nania placing his penis on A.M.‘s mouth. (Id. at 12.) The remaining two counts were because Nania placed his hand and his penis on A.M.‘s vagina. (Id. at 13.) None of this conduct increased Nania‘s federal offense level.
To see why, we examine the reasons the district court increased Nania‘s offense level, which happened four times as a result of conduct involving A.M. (Id. at 7-8.) First, the Guideline covering the crime to which Nania pled guilty has a Special Instruction: if the defendant exploited multiple victims, each victim should be treated as a separate count of conviction and then grouped together into a combined offense level. See
The key question is whether the increase in Nania‘s offense level for that “base conduct” was due to actions already being punished by a state sentence. We generally do not want a defendant being punished twice for the same conduct, so the second requirement of
The same is true for the three remaining enhancements Nania received for conduct involving A.M. All three resulted only from particular characteristics of the federal offense. The first enhancement applied because that offense involved a minor who
Given the above, none of the state counts for conduct involving A.M. increased Nania‘s federal offense level. As such,
ii. S.M.
We next address whether
The district court then attempted to work around the potential application of
We will later conclude that the district court had the same discretion accorded by subsection (c), even if subsection (b) applied to state Count Four, as appears to be the case under the definition of “offense” we have used today. For that reason, in Nania‘s case, the definition used did not impact the Guidelines’ recommendation about concurrent sentences—either one led to the Guidelines giving the district court the broad discretion of
The problem with the district court‘s approach is that it cannot disregard relevant conduct, even for the sake of argument. Once the court accepted the findings of the PSR, which listed Nania‘s offenses against S.M. as facts, the court could not remove those acts from its calculations. Those transgressions were relevant conduct and had to be treated as such when calculating the Guidelines range. See
c. Application note 3(D)
The court followed proper procedure because of another part of its deliberative process: invoking its discretion under Application Note 3(D). This Note states that,
[o]ccasionally, the court may be faced with a complex case in which a defendant may be subject to multiple undischarged terms of imprisonment that seemingly call for the application of different rules. In such a case, the court may exercise its discretion in accordance with subsection (c) to fashion a sentence of appropriate length and structure it to run in any appropriate manner to achieve a reasonable punishment for the instant offense.
The Application Note lists three prerequisites for its invocation: (1) a complex case; (2) a defendant facing multiple prison terms; and (3) those prison terms seeming to “call for the application of different rules.”
The structure of the Note might at first indicate that “different rules” means rules other than those included in
With that reading in mind, different rules indeed seem to govern Nania‘s case. State Count Four appears to be governed by
A larger question looms in the background, however. Does this Application Note actually trump the text of the Guidelines themselves? After all, the Guidelines make no mention of a separate safety valve for when multiple provisions apply; there are only the three rules laid out in subsections (a), (b), and (c). Furthermore, as mentioned, Application Note 3(D) is structured as specifically applying to
We further highlight that our interpretation avoids a potentially absurd result. Assume that the Guidelines apply in the way discussed earlier: section 5G1.3(b) governs state Count Four, while subsection (c) applies to the remaining counts. In that case, the Guidelines would recommend that Nania‘s federal sentence run concurrently with his sentence for state Count Four. The sentence for that count was 180 months. Thus, taking into account of all of Nania‘s crimes, his recommended federal sentence of 360 months would have been suggested as 180 months consecutive to the state sentences and 180 months concurrent to the state sentences. Yet, had it been permissible to disregard Nania‘s crimes against S.M., Nania‘s Guidelines range would have been 292 to 360 months, all consecutive to the state sentences (since, as we concluded, none of the other offenses satisfied the requirements of
That result is troubling—by including additional culpable conduct (i.e. state Count Four) in Nania‘s sentencing calculation, his recommended time in prison shrinks by a decade or more. We understand the Sentencing Commission wants to avoid punishing defendants twice, but we cannot imagine that it would want to reduce a sentence when more crimes are added to the picture. Our reading of Application Note 3(D), however, avoids this absurd result. See United States v. Brown, 232 F.3d 44, 49 (2d Cir.2000) (per curiam) (noting that
In light of all the above, we find the district court correctly determined that the Guidelines did not make an affirmative
d. Other procedural concerns
As alluded to earlier, when a district court invokes Application Note 3(D), the Note refers the court to Application Note 3(A) for further guidance. See
Courts are not statutorily obligated to use the factors listed in Application Note 3(A). Furthermore, the Guidelines use permissive language when describing the factors, so we cannot say that weighing them goes part and parcel with determining what the Guidelines recommend under
There is one more mandatory procedural question still to be addressed, however: the factors listed in
Despite Nania‘s contentions otherwise, the district court satisfied these benchmarks. The court first acknowledged the factors listed in
The court also responded to Nania‘s principal arguments. Regarding sentence length, Nania asserted that his military service, depression, and history of substance abuse warranted a decreased sentence. The court acknowledged Nania‘s claims and cited the relevant provisions of the Guidelines. (Id. at 44-46.) According to those sections, alcohol abuse does not generally warrant a reduced sentence, while military service and depression warrant a reduction only in unusual cases. See
The court gave similarly judicious treatment to Nania‘s claims regarding a concurrent or consecutive sentence. First, Nania insisted that his federal sentence should run concurrently with his state sentences because the overlapping conduct met the requirements of
Whether the district court‘s conclusions were reasonable is a separate, substantive inquiry, which we will address below. We are satisfied, however, that the court fulfilled its procedural obligations.
B. Substantive Reasonableness
Having concluded the district court followed sound procedure, we must now determine whether that procedure led to its intended outcome: substantively reasonable punishment. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We conduct this review for abuse of discretion. Id. Furthermore, because Nania‘s sentence fell below the Guidelines’ recommendation, we presume it was reasonable. See United States v. Klug, 670 F.3d 797, 800 (7th Cir.2012). Nania bears the burden of proving otherwise, United States v. Tanner, 628 F.3d 890, 908 (7th Cir.2010), but fails to carry that burden here. He presents two reasons his sentence might be substantively unreasonable: its length and the fact that it runs consecutively to his state sentences. We address each argument in turn but find neither compelling.
1. Sentence length
We first emphasize that the district court imposed only the 330-month
With that fact in mind, we turn to Nania‘s principal arguments about sentence length, which focus on his mental health, substance abuse, and military service. Nania claims that his history of depression and alcoholism warranted a decreased sentence. Nania also asserts that the court should have given a greater reduction for Nania‘s time in the Army—for the awards he earned and for his overseas service in Kuwait. We agree that Nania‘s mental health struggles are troubling and that his military record is laudable. At the same time, we cannot say that the district court abused its discretion. The court acknowledged these considerations had some cumulative mitigating value, which the court took into account when formulating Nania‘s sentence. (R. 31 at 45-46.) Without doubt, that mollifying force influenced the court‘s decision to impose a below-Guidelines sentence. (Id.)
Thus, Nania‘s argument boils down to the claim that he should have received a sentence even further below the Guidelines. The district court reasonably rejected this proposition. Nania committed a very serious crime—sexually abusing multiple young girls and creating images of the abuse that will continue to haunt his victims for years to come. Although Nania presented evidence of depression and alcoholism, none of his circumstances were unusual enough to make an already below-Guidelines sentence unreasonable. Furthermore, as the district court noted, Nania can receive treatment for these maladies while in prison. (Id. at 45.) As for Nania‘s Army service, we again agree with the district court that nothing shows why Nania deserves a more significant downward departure.
We do not mean to downplay Nania‘s struggles or accomplishments. Neither did the district court. The court considered these matters when fashioning Nania‘s punishment, and they led it to impose a below-Guidelines sentence. The fact that Nania did not receive an even lower sentence does not mean that the district court abused its discretion—and it certainly does not overcome a presumption of reasonableness.
Nania‘s secondary argument about sentence length similarly founders. Nania notes that, statistically, defendants who commit federal child pornography offenses tend to receive sentences lower than 330 months. (Appellant‘s Br. at 41-42.) Nania thus claims that his sentence creates an unwarranted disparity with others who committed the same crime. This argument is a nonstarter. We reiterate that Nania received a below-Guidelines sentence. Thus, the Sentencing Commission, which is charged with taking nationwide statistics into account, has already found that an even higher sentence would not have created an unwarranted disparity. In fact, we give the Sentencing Commission‘s views on these issues such credit that we have stated a within-Guidelines sentence necessarily takes into account unwarranted disparities. See United States v. Matthews, 701 F.3d 1199, 1205 (7th Cir.2012); United States v. Bartlett, 567 F.3d 901, 908 (7th Cir.2009). Given this holding, it is “most unlikely” that a
For these reasons, Nania has failed to overcome the presumption of reasonableness that attaches to his below-Guidelines sentence. Therefore, we cannot find 330 months a substantively unreasonable prison term.
2. Concurrent vs. consecutive sentence
Finally, we address whether it was reasonable for the district court to order Nania to serve his federal sentence consecutively to his state sentences. Nania‘s sentences are indeed lengthy. As discussed, Nania will begin serving his 330 months in federal custody when he is 103 years old (at the earliest). Barring proceedings that vacate some of Nania‘s sentences, he will die in prison. We have said before that “death in prison is not to be ordered lightly,” Vallar, 635 F.3d at 280, but we do not think the district court did so in this case.
First, the court explained “that a fully concurrent sentence ... would not provide any additional punishment for the defendant‘s federal offenses.” (R. 31 at 53.) This argument makes sense. As referenced earlier, the federal and state offenses target different conduct to protect different interests. The state offenses punished the abusive conduct itself, while the federal offense punished the memorialization of that abuse in pornography. That act carries additional consequences. Pornography creates “a permanent record of a child‘s abuse” that will continue to harm the child as the image circulates. Ashcroft v. Free Speech Coalition, 535 U.S. 234, 242, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). The district court expressed great concern about these lasting consequences, specifically because no one knew exactly what happened to one of Nania‘s hard drives that contained many pornographic images. (R. 31 at 42.)
The federal sentence also addresses deterrence, a separate objective. Given the particularly pernicious form of continued abuse that comes with child pornography, the government has determined that “severe criminal penalties” are warranted to “dry up the market.” Free Speech Coalition, 535 U.S. at 249-50, 122 S.Ct. 1389. Had Nania received a fully concurrent sentence, those goals would not have been furthered. Again, the district court explicitly appealed to this reasoning when determining Nania‘s sentence. (R. 31 at 41-42); (id. at 53-54). Thus, the district court concluded that these concerns justified a consecutive sentence, despite other potentially mitigating considerations. (Id. at 52-53.) Although Nania contends otherwise, we find this reasoning sufficient to justify the sentence imposed.
Nania argues that a consecutive federal sentence serves no marginal deterrence because it effectively piles a life sentence onto another life sentence. We disagree. Nania openly acknowledges that he may outlive his state sentences. (Appellant‘s Br. at 44.) Thus, a consecutive federal sentence serves an additional function: assuring that Nania remains in prison for life. As we have said before, “a sentence of death in prison is notably harsher than a sentence that stops even a short period before.” United States v. Patrick, 707 F.3d 815, 820 (7th Cir.2013). Thus, the federal sentence indeed provides marginal deterrence to criminals who might consider producing child pornography.
Foreseeing this conclusion, Nania also argues that his sentence is too harsh precisely because it is an assured life sentence. But we do not view a life sentence as an abuse of discretion in this case. The
Nania‘s final argument relies on faulty logic. He claims that his aggregate sentence more than tripled what the Guidelines suggested (360 months). As we have discussed, however, the federal and state crimes are distinct. Nania cannot refashion the sentence length recommended by the Guidelines—a recommendation based solely upon a federal offense—into a model combined sentence for state and federal crimes. The aggregate sentence takes into account much more culpable conduct than the Guidelines did and, accordingly, should be much higher.
In light of the above, we find that the district court more than justified a sentence that did not run fully concurrently with Nania‘s state sentences. The question remains whether the district court‘s reasons equally justify a fully consecutive sentence, as opposed to a partially concurrent one. Nania‘s arguments, however, do not address this point; they posit that only a fully concurrent sentence would have been reasonable. At oral argument, we nonetheless expressed concern that a partially concurrent sentence might have been a more finely-tuned decision. That said, we do not feel the district court abused its discretion, nor that a partially concurrent sentence would have ultimately made any substantive difference in this case. We have already explained why a sentence amounting to an assured life term was reasonable punishment for Nania‘s crimes. After finding one assured life sentence reasonable, we see no substantive difference between that sentence and other terms that would have also assured life in prison.
Nania‘s sentence is indeed long, but long sentences are no stranger to federal courts of appeals in child pornography cases. See, e.g., United States v. Noel, 581 F.3d 490, 500-01 (7th Cir.2009) (affirming 360-month sentence); United States v. Sarras, 575 F.3d 1191, 1220-21 (11th Cir.2009) (affirming 1,200-month sentence); United States v. Betcher, 534 F.3d 820, 827-28 (8th Cir.2008) (affirming 9,000-month sentence). The senseless acts of these criminals damage children for the rest of their lives. The government has thus understandably devoted considerable resources to deterrence—and that distinct objective warrants our attention. In that light, we find a 330-month consecutive sentence reasonable punishment.
III. CONCLUSION
For the foregoing reasons, we AFFIRM Nania‘s sentence.