*1 offenses, two range for the guidelines America, the defendant’s con- UNITED STATES based on
could do so offense, rather underlying Plaintiff-Appellee, viction for 924(c) Given this § conviction. than the circumstances, entirely expect- it is set for a conviction longer
ed that KLUG, Joseph Defendant-Appellant. E. 924(c) But because § is unusual. kidnap- attempted underlying conduct No. 11-1339. plea pursuant was dismissed
ping Appeals, United States Court in a situa- Lucas was different agreement, Circuit. Seventh sentenced un- most defendants tion from 924(c). § der Argued Oct. 2011. that, Second, given the argues Lucas guide- variance from the magnitude of the Decided Feb. sentence, failed to court district
lines justification under 18 compelling
offer 3553(a) imposed. § for the sentence
U.S.C. because argument to this find no merit
We justified its sentence us-
the district 3553(a) § factors. The district violent na- length
court discussed offense, involved a Lucas’s which
ture of kidnap plan meticulous
premeditated, minor, as well as Lucas’s harm a then The court characteristics.
personal offense, of the Lu- that at the time
noted release Massa- on conditional
cas was firearms. illegal possession of
chusetts for court also found adequately take into did not
guidelines “seriousness of the of-
consideration the 3553(a)(2) because the rele-
fense” under dismissed count of
vant conduct kidnapping was not otherwise
attempted sentence.
considered under the compel- the district court offered
We find the sentence it im-
ling justification for substantively and the sentence was
posed,
reasonable.
III. Conclusion foregoing
For the Affirm
Lucas’s sentence.
search his residence. Agents warrant at he Klug, interviewed confessed to hav- ing a large pornography. collection filming He surreptitiously also admitted to boys supervised Royal he on Rangers camping or trips encountered locker room of his club. During camping health trips Klug had a camera in his hidden backpack boys showering. to film one On occasion, he hidden used a camera to film tent; boy a changing clothes while a this filming happened also to record the boy after masturbating. camping And one trip boy he back brought a to his house and then filmed him secretly using the Klug cropped restroom. the facial fea- subjects, ranged tures of his from 9 to 14, before trading pornographic im- ages pornography. for more child He de- (argued), Suzanne M. Garrison Attor- children, nied molesting any and the ney, Attorney, Office of the United States secretly Royal on Rangers filmed IL, Heights, Fairview for Plaintiff-Appel- trips, during who were interviewed the in- lee. vestigation, indicate that per- did not (argued), Attorney, Michael A. Gross St. Klug ceived to touched them in inap- have Louis, MO, Defendanb-Appellant. propriate ways. Klug conceded in his FBI interview, however, that he had fantasized CUDAHY, FLAUM, Before children, wishing about perform to TINDER, Judges. Circuit them, oral sex on and that he went out of them, way to be close physically TINDER, Judge. Circuit them, brushing up against squeezing Joseph guilty E. Klug pleaded pro to patting shoulders and backs. ducing pornography. 2252(a)(4)(B). 2251(a), §§ See 18 U.S.C. When examining computers and imprisonment After calculating range of equipment, agents 59,- related uncovered life, the district court sentenced Klug to a 000 still appeal, Klug
total 384 months. On ar 12,000 (the videos of child gues sentence is unreason being latter equivalent pur- ably long. judgment. We affirm 900,000 poses images, still see U.S.S.G. (B)(ii)). § 2G2.2 cmt. n. 4 Those
Klug came to the attention of law en-
depictions
include
sexual
bestiali-
agent,
forcement after an FBI
using
ty, and
Authorities
infants.
also uncov-
network,
peer-to-peer
discovered that an
logs
exchanges
ered chat
of graphic
be-
Internet
assigned Klug
address
Klug
persons
tween
and other
interested
used to share child
Af-
in child
agents
pornography. The chats revealed
ter
learned that
held a lead-
children,
ership position
Royal
molesting
Rangers,
fantasies about
youth ministry, they
children’s
executed a
well as solicitations for
from
videos
on
the videos that her father
advice from
covered
collections and
private
raping
circulating
her were
children.
made while
sexually violate
how to
Echoing the concerns of the
the Internet.
impris-
calculated an
*3
filmed,
boys Klug had
mother of one of the
Klug’s total
of life based on
range
onment
that,
judge explained
although
history
criminal
of 43 and
offense level
boys
yet
images
were not
aware that
I. Before the court
category of
circulating,
them were
he found it trou-
testi-
sentence,
government
“[tjhere
that
will come a time when
bling
investigat-
agent
FBI
mony from the
they
that out of their control is
recognize
Klug.
government
The
ed and interviewed
body,
an
of their
whether their face
image
children
statements from
also submitted
not,
being bought
that is
and
is visible or
Klug’s
por-
in
collection of child
depicted
judge
sold and traded like a chattel.” The
boys
of one of the
parents
The
nography.
Klug’s
then moved on to
conviction for
separate written
by Klug submitted
filmed
possession, pointing out that his collection
describing
Klug’s actions
how
statements
largest
was the
their son
unwilling
them
to entrust
left
judge
judge
ever had encountered. The
boy’s mother
chaperones.
male
The
Klug’s
col-
expressed concern
massive
not know he
that her son does
explained
addiction
lection had not satiated his
significant
taped
experiences
but she
was
instead,
try
he continued to
to increase the
knowing
day
that one
he will
anxiety from
collection,
prompted
judge
which
to
testified, too,
Klug
and called his
find out.
question
physical
whether
abuse would
wife,
as well as several
parents and
step.
have been
next
friends,
Klug
character witnesses.
court,
victims,
judge highlighted Klug’s
logs,
and his
The
chat
apologized
particularly troubling.
“selfish” and destructive be- which he found
family for his
havior,
fantasy
an
in
Klug
the court that he was
had created
online
life
and he told
son,
in
counseling for his addiction to which he has at least one
one of
seeking
at sentencing,
those chats introduced
he
boy
performing
recounts
oral sex on the
sentence,
explaining
prison
In
“so that he could learn what it was like”
by noting that he
judge began
district
incident, sexually
in another
molest-
testimony,
including
all of the
credited
boy
boy’s
during a
ing the
and the
friend
judge
Klug’s character witnesses. The
trip to Toronto. The chats also include
Klug’s spotless
history
criminal
balanced
Klug coaching
partner
groom-
a chat
about
level,
highest
against his total offense
sex, achieving penetration,
ing children for
guidelines.
judge
The
first
listed
concealing
instructed
abuse.
for
producing
addressed
conviction
young
victims
partner
that chat
warn
highlighting
anyone
happened
not to tell
what had
position
by filming
of trust
had abused his
cause disclosure would embarrass them.
supervised
distributing
and then
addition,
trading partner
In
Klug asked
judge
their
on the Internet. The
for him.
to create
impact statement he
pointed to a victim
in
The district court could have sentenced
repeatedly
child-pornography
had seen
(30
years
years
to a total of 40
particularly compelling: Klug
deemed
cases and
series,”
in
and a consecutive
depicted
The victim
the “Vicki
2251(e),
See 18 U.S.C.
§§
Klug possessed, explains
possession).
her vic-
which
2252(b)(2).
maximum,
statutory
But the
impact
tim
statement
that her “whole
reasoned,
nec-
judge
greater
crashing
came
down” when she dis-
world
essary
employment history
harm to his
given Klug’s
by giving
victims
their
spouse,
supportive
and the absence of
a permanent
potential
existence and the
any history
drug abuse.
of sexual abuse or
replication,
for endless
all of which is be-
judge
on a total of months.
settled
yond the control of the victims. And even
though the facial
in the images
features
appeal Klug
On
contends
cropped
were
before
were traded
is too harsh. An overall
months
Klug,
facial features are not the
basis
magnitude, Klug
sentence of that
identify
that can be
recognize
used
or
producers
should be reserved for
of “hard
person depicted
image.
The Su-
depicts
core
children be
*4
Court,
preme
concluding
governments
that
ing raped
engaged
explicit
adults or
greatest
have the
regulate
latitude to
sexu-
activity
sexual
with other children.” His
videos,
ally explicit images when children
maintains,
are de-
“categorically
are
they only depict
picted,
different” because
“chil
observed that
pornography
is
dressing
undressing”
dren
and
“in pernicious precisely because the harm it
alleged
one incident not
to have been
produces is not limited to the sexual abuse
planned, masturbating.” Klug does not
it depicts. “Because the child’s actions are
argue that the sentencing court committed
to a recording,”
reduced
the Court rea-
any procedural error.
soned, “the pornography may haunt him in
years, long
original
future
after the
mis-
prison
Because
overall
sen
Ferber,
place.”
deed took
New York v.
guidelines
tence is below the
range, we
747,
10,
3348,
458 U.S.
760 n.
102 S.Ct.
73
apply
presumption
of reasonableness.
(1982);
L.Ed.2d 1113
see also Osborne v.
States,
338,
See Rita v. United
551 U.S.
Ohio,
103, 111,
1691,
495 U.S.
110 S.Ct.
109
347-56,
2456,
127 S.Ct.
Instead, Klug’s stance seems to be that enduring on the harm to the child victims no harm came to the children he filmed in concluding that child of- contact, because there was no sexual fenses warrant harsh thus, sentences. prison sentence is Blinkinsop, United States v. 606 excessive. But definition harm F.3d is (9th Cir.2010) 1110, (observing far too narrow. 1118 As the district court ob- served, Klug punishing receipt possession circulated on laws his films Internet and caused distinct and serious child pornography create incentive to de-
801
to child
in-
alleviate the con-
crimes related
materials and thus
stroy
production
a count of
cluding
based on
on child victims
harm inflicted
tinuing
surreptitious
daughter
films of his own
in a
“images
preserved
have been
whose
girlfriend’s daughter.
a former
428 F.3d
medium”);
permanent
(7th Cir.2005).
685,
period
689-90
(9th Cir.2008);
915,
Daniels,
F.3d
imprisonment
was within
250, 259
Goff,
States
United
range
statutory
and included the
maximum
Gross,
(3d Cir.2007);
States v.
United
(240
count
months at
(7th Cir.2006);
see also Child
time).
Id. at 686. The defendant
Act of
Pornography Prevention
that the amount of
time was
104-208, 121,
110 Stat.
Pub.L. No.
because,
view,
excessive
the term
(1996) (setting
Congressional
out
3009-26
longer
“was far
than sentences
that “the creation or distribution
finding
other
whose crimes were worse
defendants
image
which includes
his own.” 428 F.3d
689. We
minor invades the child’s
recognizable
of a
3553(a)
Ҥ
began
emphasizing
does
interests,
reputational
since
privacy and
*5
disparities;
not ban all
its concern is
showing
are created
a child’s
images that
disparities.”
with unwarranted
Id. We
body
a
identifiable feature on
face or other
then concluded that the
com-
defendant’s
can
sexually explicit
in
conduct
engaging
parisons
to “other defendants whose
come”).
minor for
haunt the
crimes were worse
his own” were not
Moreover,
lengthy.
upheld
this court has
enough
presumption
to overcome the
of
in pro-
involved
sentences for defendants
reasonableness.
Id.
the
child
even where
ducing
Although Klug does not use the term
in
process.
were not molested
the
victims
deterrence,”
“marginal
see United States
80-year
In
sentence was affirmed
Noel
(7th
Beier,
572,
Cir.2007),
490 F.3d
nearly
circumstances. 581
under
identical
essentially
contends
others will not
baby-
in
at 500. The defendant Noel
producing
from
be deterred
“hard-core”
young
stepbrother
the
son of his
but
sat
pornography
child
because his own sen-
by taking
of
nude
position
trust
abused
if
higher
tence would not have been
even
at
slept.
the child while he
Id.
photos of
by
produced
pornography
he had
child
counts
multiple
He was convicted of
sexually abusing
the
in his care. But
pornography based on
producing
of
child
explicitly rejected
utility
the
of
we have
and was also convicted
photographs
those
marginal
involving
deterrence in cases
the
im-
and other
of
production
from different
ages
of
285,
Maulding,
627 F.3d
A total offense level of 48 and
sources. Id.
Beier,
575;
Cir.2010);
490 F.3d at
history category
yielded
of I
criminal
Newsom,
at
ex-
689-90. We
prison,
of life in
id. at
guidelines range
plained
marginal
deterrence
Beier
years was
Noel
that 80
does not mandate that “crimes
different
Despite
Id. at 500.
unreasonable.
gravity
punished
must never be
the same.
presumption
absence of sexual
two crimes of different
punishing
It is that
this court
of reasonableness allowed
gravity the same is unsound when to do so
argument” that his
“quickly dismiss Noel’s
encourage
would
additional crimes.” Bei-
long.
sentence was too
Id.
er,
theory margin-
CUDAHY, Judge, concurring. Circuit Here, pornographic images. one of the join key evils to majority opinion prosecution I I be reached is because exposure agree pictured children to wide- sentence is within the spread humiliation. presumptively and therefore The district court in sentencing its particularly emphasized reasonable discussion this case of crime, aspect things by citing profound this multifaceted much is left to the discretion of the effect on it of the sentencing judge after “Vicki video” victim *6 impact consulting by subject statement the of that Admittedly, U.S.C. 3553. however, video many questions deeply by this leaves unan- who was distressed many swered and broad circulation of possible questions identifiable relate, being by However, her questions raped unasked. These her father. among present other things, primary to what are the video differs in that the evils vic- sought to tims’ by prosecution be reached identities have been excised. How weigh course, various does this strands what the scales? Of perhaps are the relationships, any, many if between more obvious factor in the anal- ysis different sorts of is the one strenuously by violations and what are most prospects repeat namely defendant: offenses portrayed who have severely punished showering, been on his videos of these dis- may robing It masturbating offenses. be a matter of and even are conse- relative- ly quence compared that the district court mild stuff rape. itself at the forcible time sentencing announced that The other charged violation here in- crime in question was one it did not under- possession volves of pornographic images stand. I am it sure was not alone in this in quantities apparently rarely equaled. sentiment. explicated As in Ashcroft, primary evil
The most authoritatively well-known and here is the creation of a market for the established evil of pornography pro- production images involving the evils duction is the overt exploitation already briefly of children posses- described. Since performers pornographic as depictions. sion carries a maximum sentence of ten The role of performers years, as victims figure is illus- it does not significantly it, trated the distinction sentencing controversy. drawn But as well as Supreme offenses, Court between real human per- other child leads to formers images. and virtual the issue that has involved almost unlimit- Ashcroft does but few conclusions: speculation ed America, UNITED STATES of statutes of the child
violation Plaintiff-Appellee, abuse, which physical child actual predict danger regard as the most analysts most v. complex. present In the of this ous evil FLORES-LOPEZ, Defendant- Abel case, that the de there was no evidence Appellant. physical had committed fendant court although the district abuse No. 10-3803. raised the issue whether direction, in that left the pointed offenses Appeals, States Court of United at least as undemonstrated or question Seventh Circuit. thus fol
unproven. Argued Jan. 2012. opinions in in the wake of numerous lowed called many speculated, circuits that have Decided Feb. merely research or assumed
for more likely conclusions. Several
what seemed begun ag have to more appeals
courts of for substan review these cases
gressively See, e.g., reasonableness. United
tive
States Dorvee,
2011); (2d Cir.2010); see also States United (3d Grober, 603-10 Cir.
2010). pre-
These are some of the issues here, generally these child
sented guide- cases about which the *7 authority pro-
lines and other sources guidance and about which there
vide little speculation
is almost inevitable but facts or by. conclusions are hard to come
solid uniformity can-
Under these circumstances All justice
not achieved and is elusive. be responsible contributors to the sen- on a better
tencing process need focus
provision of reasonable standards as many
issues I have mentioned and others by these multifarious crimes.