UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DOUGLAS LONG, Defendant-Appellant.
No. 04-1721
United States Court of Appeals For the Seventh Circuit
ARGUED FEBRUARY 22, 2005—DECIDED OCTOBER 7, 2005
Before KANNE, WOOD, and SYKES, Circuit Judges.
Appeal from the United States District Court for the Central District of Illinois. No. 03 CR 40065—Michael M. Mihm, Judge.
WOOD, Circuit Judge. Caught with tens of thousands of images of child pornography on a personal laptop computer that he kept at work, Douglas Long pleaded guilty to one count of possession of child pornography and one count of criminal forfeiture. See
I
On the night of July 10, 2003, Long received a call from John Brockmeier, the district manager of Washington Inventory Service, where Long worked in Moline, Illinois. Brockmeier asked Long to meet him at Long’s office. Long arrived shortly thereafter; he found not only Brockmeier, but also Detectives David Frank and Kerrie Davis of the Peoria Police Department and FBI Agent Greg Catey, waiting for him. The Peoria Police had arranged the meeting with Brockmeier because the previous day a girlfriend of one of Long’s employees had given the police two CDs containing child pornography and told the police that the CDs belonged to her boyfriend’s boss, whom she identified as Douglas Long. After conducting an examination of the CDs and verifying that they contained child pornography, the police contacted Brockmeier and arranged for the unusual evening meeting.
Once Long arrived at his office, Detectives Frank and Davis opened the conversation (which Long characterizes as an interview) by telling him that somebody had brought something illegal to the Peoria Police Department. They
What happened next in the exchange between Long and the detectives is a matter of dispute. Detective Frank claims that before Long gave him permission to search his office and any computers, including his personal laptop, the detective asked him if there was anything illegal in the office and Long replied “to some people it might be.” Detective Frank then asked what Long meant, and Long allegedly replied that there were pictures and movies of sex acts with children. Long took the position that the alleged conversation containing the admissions about possessing illegal materials and having files depicting sex acts with children did not take place prior to his giving consent to search (and perhaps never took place). What is undisputed is that Long signed a written consent form that authorized the police to search his office. The consent form allowed the officers to remove “whatever documents, items of property whatsoever, including but not limited to computer hardware, software, and all other external media storage, which they deem pertinent to their investigation and search said items . . . .” After signing the form, Detective Davis searched Long’s office and found 10 CDs. At the same time, Detective Frank retrieved his forensic laptop, which was equipped with Encase diagnostic software. (The “Encase Cybercrime Arsenal” package is sold by a company called Guidance Software to the law enforcement community; it is described as a powerful search and diagnostic program. See http://www.guidancesoftware.com.) Using the Encase software, the detectives searched the CDs and found movies and photos of child pornography on them. When Long’s
After examining the content of the CDs, the detectives gave Long his Miranda warnings. They then continued their interview with Long. Long admitted that the CDs that the anonymous woman had brought to the police were his and that he had downloaded images of child pornography from the Internet. He explained that he had been collecting child pornography for five to six years. Long also admitted to having inappropriate sexual contact with his daughter.
Once the interview concluded, Long and the agents went to Long’s home. The agents did not seize or search his home computer, because they believed Long when he said that he had used only his laptop to download images. While at his residence, Long, in the presence of the agents, admitted to his wife that he possessed child pornography and that he had had inappropriate sexual contact with their daughter. Afterwards, Long was taken to the Peoria Police station.
Long filed a motion to suppress the physical evidence seized from his workplace and his statements, on the ground that the search of his laptop and the CDs exceeded the scope of his consent. The district court denied his motion. The court found that Long “was informed that [the agents] were there in part to investigate because of allegations of wrongdoing against him and also that the allegations included allegations that there was illegal material there.” The court found Long’s claim that he did not know that the police would search the CDs or use forensic programs to conduct their search of the items to be beside the point, because Long had been informed of the basis of the search, the consent form he signed was very broad, and the form specifically mentioned searching “computer hardware, software, and all other external media storage.”
After losing his motion to suppress, Long entered a conditional guilty plea to both counts of the indictment,
On March 18, 2004, the court sentenced Long to 96 months’ imprisonment and 10 years of supervised release. His sentence was calculated using the 2003 version of the Sentencing Guidelines. The base level offense for violating
The total offense level that resulted for Long’s sentence was 25, after the court deducted three levels for acceptance of responsibility. With a criminal history category I, he faced a guidelines range of 57 to 71 months. The judge
The judge structured the upward departure by referring to § 2G2.4(b)(5), which sets forth the following rules for enhancements:
(A) at least 10 images, but fewer than 150, increase by 2 levels; (B) at least 150 images, but fewer than 300, increase by 3 levels; (C) at least 300 images, but fewer than 600, increase by 4 levels; and (D) 600 or more images, increase by 5 levels.
§ 2G2.4(b)(5). The judge explained that a four-level upward departure was appropriate for Long’s sentence because “if we take the officer’s estimate at 15 to 20,000 [pornographic images] and we reduce it by, let’s be generous, 2,000 possible duplicates, which would be double what his suggestion was, we’re still talking about 13 to 18,000 different child pornography images. That’s many, many times more than the 600 that call for an upward adjustment of 5 levels.” In fact, the choice of four more levels was consistent with the pattern that the guidelines establish. The structure of § 2G2.4(b)(5)(D) contemplates an increase of one offense level every time the quantity of images doubles after the first increase to 150 images, and thus the judge could have extrapolated from that pattern and increased the offense level each time the previous ceiling of the quantity of images doubled. Doing so would have resulted in a finding that a 9-level increase over the base was appropriate for at least 9,600 images but less than 19,200 (or four levels beyond the maximum of five prescribed by § 2G2.4(b)(5)(D)), which is exactly what Long got.
On appeal, Long makes three arguments: first, that the district court erred in denying his motion to suppress; second, that the court erred in upwardly departing four offense levels; and finally, that his sentence is unconstitutional in light of United States v. Booker, 125 S.Ct. 738 (2005), and he is entitled to full resentencing.
A
We review legal questions in connection with a district court’s denial of a motion to suppress de novo, while we apply the normal deferential “clear error” review for underlying factual determinations. United States v. Cellitti, 387 F.3d 618, 621 (7th Cir. 2004). Long has essentially challenged the district court’s finding that the search of his office and computer fell within the scope of his consent, noting that a consent search must stay within the boundaries of the consent that was given. Florida v. Jimeno, 500 U.S. 248, 251 (1991). The scope of consent is “limited by the breadth of actual consent, and whether the search remained within the boundaries of the consent is a question of fact to be determined from the totality of all the circumstances.” United States v. Raney, 342 F.3d 551, 556 (7th Cir. 2003) (quoting United States v. Torres, 32 F.3d 225, 230-31 (7th Cir. 1994)). In determining the scope of a defendant’s consent, we apply an objective standard: “what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Id. (quotation marks omitted).
Long argues that no reasonable person would have expected that the detectives’ request to search his “office” was meant to include a search of his personal laptop and CDs with the aid of the Encase diagnostic software installed on Detective Frank’s forensic laptop. Long argues that he did not have notice that he was consenting to such an intrusive search because the police had informed him only that they were investigating something illegal that was given to them by someone who might want to get Long in trouble.
We reject Long’s argument for the simple reason that the consent form he signed explicitly allowed the agents to search his office and laptop, with no limitations or
We turn now to Long’s challenges to the district court’s decision to make a four-level upward departure in computing Long’s sentence. After Congress passed the PROTECT Act and before Booker, the courts of appeals were instructed to review de novo the question whether a departure was based on a factor that did not advance the objectives of
The district court concluded that an offense level of 25 “is not an accurate reflection of what [Long’s] sentence should be.” In deciding how many levels to add, the court relied on its authority under § 5K2.0(a)(3) to use a circumstance that “is taken into consideration in determining the guideline range, if the court determines that such circumstance is present in the offense to a degree substantially in excess of . . . that which ordinarily is involved in that kind of
The district court thus adequately explained how the departure was linked to the structure of the guidelines. See United States v. Hogan, 54 F.3d 336, 342 (7th Cir. 1995) (“[A] district court must link the extent of departure to the structure of the guidelines.” (internal quotation marks and citation omitted)). As we noted earlier, the upward departure followed, as a practical matter, the pattern of imposing an additional offense level each time the number of images doubled from the previous cap. This was one acceptable way to link the departure to the guidelines. The court adequately explained its reasons for increasing Long’s sentence, and we find no error in either the decision to depart or the degree of departure.
C
Finally, we consider Long’s challenge that his sentence is unconstitutional in light of the Supreme Court’s decision in Booker. In Paladino, we found that our plain error review in the sentencing context normally will require input from the district court before we can determine whether a defendant’s substantial rights have been affected by the Booker error. See 401 F.3d at 483-84. The only difficult question here is whether the district court’s decision to depart upward should direct us instead to the rule announced in United States v. Lee, 399 F.3d 864 (7th Cir. 2005). In Lee, we recognized that although it is usually impossible to say whether a district court’s sentence would have been influenced by the knowledge that the guidelines are advisory, there are some cases in which “we can be
Although we consider it a close call, we have concluded that a Paladino remand is necessary in this case. As a responsible district court judge in the pre-Booker era, the judge here adhered scrupulously to both the guidelines and the structure of the guidelines in determining the departure. Freed from the mandatory nature of that structure, the court will be free to consider the factors outlined in
At Long’s sentencing hearing, the lawyers for both the government and Long emphasized numbers: the number of images Long possessed; the method the government used to calculate the number of images; the number of images that contained actual pornographic images; the number of possible duplicate images; and the quantity of images that contained aggravating circumstances to warrant the
III
We AFFIRM the district court’s denial of Long’s motion to suppress and the judge’s calculations under the Sentencing Guidelines. We order a limited REMAND with respect to his sentence while retaining jurisdiction in accordance with the procedure outlined in Paladino.
A true Copy:
Teste:
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Clerk of the United States Court of Appeals for the Seventh Circuit
USCA-02-C-0072—10-7-05