United States v. Angle

In the

United States Court of Appeals
For the Seventh Circuit

No. 08-2087

U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.

R ALPH W. A NGLE,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:98 CR 37—James T. Moody, Judge.

A RGUED O CTOBER 14, 2009—D ECIDED M ARCH 15, 2010

Before C OFFEY, E VANS, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. This is the fourth time
Ralph Angle appeals the sentences imposed for his child-
pornography crimes. Three times we have remanded
for resentencing because of our uncertainty about the
reliability of information used to justify a total period of
imprisonment well above the range established by the
sentencing guidelines. In our last remand we also
directed the district court to explain why a “pattern of
2 No. 08-2087

abuse” upward adjustment did not fully account for the
uncharged conduct used to justify the stiff punishment.
Both of these concerns have now been satisfied. Finally,
the district court did not abuse its discretion in
thwarting Angle from gaining personal access to the
Internet during the period of his supervised release.

I. BACKGROUND
Angle was found guilty in 1998 of possessing
child pornography, attempting to receive child pornog-
raphy, and attempting to entice a child to engage in
prohibited sexual activity, in violation of 18 U.S.C.
§§ 2252(a)(4)(B), 2252(a)(2), and 2422(b). He already had
a 1977 conviction for sodomy (involving a 15-year-old)
and a 1987 conviction for child molestation. At Angle’s
initial sentencing hearing in September 1999, the district
court imposed a sentence of 325 months in prison, a
significant increase above the range of 151 to 188 months
calculated by the court under the 1998 version of the
sentencing guidelines. That first sentencing hearing
predated United States v. Booker, 543 U.S. 220 (2005), so the
judge’s freedom to exceed the guidelines range was
still cabined by mandatory rules on “departures.” The
judge concluded that Angle’s sodomy conviction, which
was too old to count in his criminal history score, war-
ranted an upward departure under U.S.S.G. § 4A1.3, which
encourages sentencing courts to exceed the guidelines
imprisonment range if the defendant’s criminal history
category substantially understates the seriousness of his
criminal history or the likelihood of recidivism. We
No. 08-2087 3

ordered resentencing because the district court had not
followed the specific steps that, under circuit precedent
interpreting § 4A1.3, were essential to depart based on
that guideline. United States v. Angle (Angle I), 234 F.3d 326,
344 (7th Cir. 2000). We also concluded that the district
court might have miscalculated the guidelines range
and directed further study of that question on remand.
Id. at 345.
The district court resentenced Angle in 2001. The court
recalculated a lower guidelines range of 97 to 121 months
but still imposed the same amount of imprisonment. In
explaining its upward departure—a greater departure
than before—the court again cited Angle’s uncounted
sodomy conviction, but this time the court also explicitly
relied on additional information. For example, the court
noted that Angle had bragged about a sexual encounter
with a Georgia boy in an online chat with an individual
Angle thought was a 13-year-old boy. And the court cited
accusations that Angle had traveled to Mexico to have
sex with children; that he had committed acts of sexual
abuse involving his niece, his nephew, and his girl-
friend’s daughter; and that he preyed on children he met
at a gym in Indiana. The government introduced a letter
from the nephew’s wife accusing Angle of molesting
several of his young relatives. Finally, a postal inspector
testified that amateur videotapes recovered from Angle
when he reentered the United States from Mexico
depicted boys performing sex acts. But the district court
did not explain why it credited these accounts of un-
charged criminal acts, so we again remanded for
resentencing and directed that the case be reassigned to
4 No. 08-2087

a different judge. United States v. Angle (Angle II), 315 F.3d
810 (7th Cir. 2003).
At the third sentencing hearing in 2005, the new judge
decided that Angle’s conduct warranted 300 months’
imprisonment, 25 fewer than before, but still well above
the guidelines range. The district court took into
account the evidence introduced at trial and during the
first two sentencing hearings, and also allowed the gov-
ernment to introduce new testimony from one previously
unavailable witness, a woman who said that Angle had
molested her as a child when he was dating her mother
and living with them in California. The district court
cited Angle’s long history of sexual abuse of children
to justify the substantial increase above the guidelines
range, but the judge overlooked our instruction to ex-
plain why he deemed reliable the evidence of uncharged
sexual abuse. We thus sent the case back again for
resentencing, and this time we also directed the
court to explain why its application of a 5-level upward
adjustment for engaging in a “pattern of activity
involving the sexual abuse or exploitation of a minor,”
see U.S.S.G. § 2G2.2(b)(4) (1998) (current version at
U.S.S.G. § 2G2.2(b)(5)), did not fully account for the
uncharged conduct that contributed to the above-
range period of incarceration. United States v. Angle
(Angle III), 216 F. App’x 557 (7th Cir. 2007).
In late 2007, well after Booker was decided, the district
court conducted yet another sentencing hearing, which
is the subject of this appeal. The court reviewed an up-
dated presentence report, evaluated the evidence pre-
No. 08-2087 5

sented at trial and during the prior sentencing hearings,
and heard live testimony from Angle’s niece, his two
nephews, an employee from the Indiana gym, a gym
patron and her son, the Georgia boy, and the postal
inspector. As we had directed, the court made extensive
findings concerning the reliability of the allegations of
molestation, and Angle does not contest those findings
on appeal. Appellant’s Br. at 13. The court still applied
the 1998 guidelines but also took note of amendments
promulgated since Angle’s first sentencing in 1999;
Angle’s imprisonment range under the 1998 version of
the guidelines was 97 to 121 months but would have been
360 months to life under the 2006 version then in effect.
In again settling on a total period of imprisonment of
300 months, the district court explained that the “pattern
of abuse” upward adjustment under § 2G2.2(b)(4)
did not fully account for Angle’s extensive history of
sexual misconduct involving children. The court reasoned
that the “pattern of abuse” adjustment would apply any
time a defendant engaged in at least two instances of
sexual abuse or exploitation, and yet Angle, whose
pattern of misconduct had run virtually unchecked for
20 years, was one of the worst child predators the judge
had seen in his 25 years on the bench. The court observed
that Angle had abused a position of trust as a relative to
three of the abused children, and had established a modus
operandi of ingratiating himself with single mothers
in order to abuse their children. Moreover, the court ex-
plained, Angle had produced child pornography in addi-
tion to consuming it. The court noted a series of e-mails
Angle had sent to what he thought was a distributor
6 No. 08-2087

of child pornography in Colorado (but was actually a
government front). These emails established that during
a trip to Mexico, Angle helped create at least one
sexually explicit video of children. In one e-mail sent
before his departure, Angle boasted that he was traveling
to Mexico to “play with boys” and had them “lined up
already and waiting for our arrival.” This extensive
evidence, the court concluded, signaled that Angle’s crimes
would quickly resume upon his release from prison. He
showed no remorse, and despite telling the judge that
he now wanted to participate in sex-offender treatment,
Angle had passed up opportunities to do so after his
two prior convictions for sex offenses against children.

II. ANALYSIS
A. Above-range Sentence Warranted
As we noted, in this appeal Angle does not dispute
that the district court adequately explained why it found
the evidence of uncharged acts of sexual abuse to be
reliable. That prong of our last remand is satisfied. Angle
contends, however, that the court still did not justify the
need for an above-range sentence after applying the
“pattern of abuse” upward adjustment under § 2G2.2(b)(4).
That guideline mandates a 5-level increase in offense
level “[i]f the defendant engaged in a pattern of activity
involving the sexual abuse or exploitation of a minor.”
U.S.S.G. § 2G2.2(b)(4) (1998) (current version at U.S.S.G.
§ 2G2.2(b)(5)); see United States v. Osborne, 551 F.3d 718, 721-
22 (7th Cir. 2009). As discussed above, the district court
gave several reasons for concluding that an above-range
No. 08-2087 7

sentence was warranted in addition to the “pattern of
abuse” adjustment: Angle had an unbroken, 20-year
pattern of abusive conduct; he exploited positions of
trust to get at his young victims; he created as well as
consumed child pornography; he showed no remorse;
and he would have faced a significantly higher impris-
onment range if sentenced under the current version of
the guidelines. Angle insists that the first four reasons are
fully embodied in § 2G2.2(b)(4), and that the last is im-
proper given the limited scope of our remand. We reject
both contentions.
The district court first explained that Angle’s pattern
of abuse was atypical. Many of the reported decisions
analyzing the “pattern of abuse” adjustment involve a
narrower range of abuse than was present in this case.
See, e.g., United States v. Alvarez, 478 F.3d 864, 865-66 (8th
Cir. 2007) (upholding application of the adjustment
where defendant repeatedly abused one victim); United
States v. Gunderson, 345 F.3d 471, 472-73 (7th Cir. 2003)
(upholding application of the adjustment where de-
fendant abused two victims); United States v. Lovaas, 241
F.3d 900, 901 (7th Cir. 2001) (upholding application of
the adjustment where defendant abused three victims).
Indeed, the commentary to § 2G2.2 encourages district
courts to impose a term of imprisonment outside the
guidelines range if an upward adjustment under subsec-
tion (b)(4) is inadequate to account for the seriousness
of the sexual abuse or the exploitation involved. U.S.S.G.
§ 2G2.2 cmt. n.2 (1998) (current version at U.S.S.G.
§ 2G2.2 cmt. n.7); United States v. Griffith, 344 F.3d 714,
719 (7th Cir. 2003). We cannot disagree with the district
8 No. 08-2087

court that Angle’s prolonged and extensive pattern of
abusive conduct placed him squarely within the group of
offenders contemplated by the commentary.
Second, the district court thought it significant that
Angle’s pattern of abuse involved exploiting positions
of trust. Angle opposes this reasoning on two fronts,
though his initial objection is frivolous. The govern-
ment’s evidence, he says, does not show that he held a
position of trust involving his victims. But sentencing
judges are not bound by the stringent evidentiary stan-
dards applicable at trial; rather, the evidence need only be
reliable. United States v. Cooper, 591 F.3d 582, 591 (7th Cir.
2010); United States v. Johnson, 489 F.3d 794, 796 (7th Cir.
2007). At Angle’s latest sentencing hearing, the judge
found that Angle had abused his niece and nephews, and
had targeted single mothers whose trust he could
engender in order to abuse their children. These factual
findings are reviewed only for clear error, United States
v. Davis, 442 F.3d 1003, 1008-09 (7th Cir. 2006), and though
Angle disagrees with the inference drawn by the
district court from the evidence, he has not identified
any error in the court’s assessment of that evidence.
Angle’s other objection to receiving an above-range
sentence in part for exploiting positions of trust rests on
our decision in United States v. McCaffrey, 437 F.3d 684
(7th Cir. 2006). That child-pornography prosecution in-
volved a priest who was sentenced to 240 months—
60 less than Angle—after abusing more than 100 children,
most of them from his congregations. 437 F.3d at 686-88.
Angle reads that outcome as confirmation that his own
No. 08-2087 9

situation does not warrant both a “pattern of abuse”
upward adjustment and an increase above the resulting
guidelines range. But Angle did not read our McCaffrey
opinion carefully. In that case the government success-
fully argued that the defendant’s pattern of abuse war-
ranted not only the 5-level increase under the “pattern of
abuse” adjustment, but also a (pre-Booker) upward depar-
ture equivalent to another 5 offense levels. Id. at 686-87.
We rejected the defendant’s “double counting” argument
and upheld both increases, which effectively yielded a
guidelines imprisonment range of 360 months to life. Id.
at 687-89. The only reason that the defendant in that
case averted a higher prison sentence is that he was
charged with just two counts carrying a combined maxi-
mum of 20 years, which is what the district court gave
him. Id. at 687-88. The sentencing judge was explicit,
however, that the defendant would have been impris-
oned for longer if not for the statutory caps. Id. at 690. At
all events, McCaffrey represents an extreme, and simply
because Angle’s conduct was less egregious does not
mean that his pattern of abuse could not sustain both the
upward adjustment and an above-range sentence. The
district court concluded that there was reliable evidence
that Angle abused positions of trust and, on this basis,
reasoned that Angle’s case was comparable to McCaffrey.
We agree with that assessment.
A third reason given by the district court for sen-
tencing Angle above the guidelines range is that he
created child pornography. Angle not only traveled to
Mexico for the specific purpose of engaging in sexual
abuse of children, but he arranged for the encounters to be
10 No. 08-2087

filmed so that he could trade the tapes. The upward
adjustment for a pattern of abuse is designed to punish
sexual abuse or exploitation, McCaffrey, 437 F.3d at 688;
Lovaas, 241 F.3d at 904, not the production of child pornog-
raphy, see U.S.S.G. § 2G2.2 cmt. n.1 (“ ‘Sexual abuse or
exploitation’ ” does not include possession, accessing
with intent to view, receipt, or trafficking in material
relating to the sexual abuse or exploitation of a minor.”);
United States v. Williamson, 439 F.3d 1125, 1139 n.16 (9th
Cir. 2006); United States v. Woodward, 277 F.3d 87, 91 (1st
Cir. 2002); United States v. Kemmish, 120 F.3d 937, 941-42
(9th Cir. 1997). Section 2G2.2 does not address the
creation of child pornography, and it was appropriate for
the district court to take into account that narrow scope
in exercising its sentencing discretion. See Griffith, 344
F.3d at 719 (explaining that an upward adjustment may
be inadequate to address the degree of sexual exploita-
tion); see also United States v. Whorley, 550 F.3d 326, 339-
42 (4th Cir. 2008) (affirming above-range sentence as
reasonable where circumstances were atypical and not
taken into account by the guidelines). In fact, Angle’s
involvement in making child pornography might have
warranted a cross-reference to the higher offense
levels in U.S.S.G. § 2G2.1 for production offenses.
See U.S.S.G. § 2G2.2(c) (1998); United States v. Dawn, 129
F.3d 878, 880-81 (7th Cir. 1997).
Fourth, the district court was unpersuaded that Angle
had shown any remorse for his abusive conduct. Twice
previously Angle had been convicted of sex offenses
against children, and after those convictions he de-
clined opportunities to participate in treatment for sex
No. 08-2087 11

offenders. What is more, the court observed, Angle
boasted about his criminal conduct in written correspon-
dence and Internet chat messages. The absence of
remorse, the court reasoned, made it likely that Angle
would resume his abusive conduct when he is released.
Angle’s future dangerousness is not accounted for in
§ 2G2.2(b)(4), and, thus, there was no error in the judge’s
decision to impose an above-range sentence on this basis.
See Griffith, 344 F.3d at 719-20 (upholding upward depar-
ture based on defendant’s two prior convictions for
sexual abuse of children and his three failed attempts to
complete treatment for sex offenders); United States v.
Turchen, 187 F.3d 735, 742 (7th Cir. 1999) (upholding
upward departure in child-pornography prosecution
where defendant’s criminal history and unsuccessful
rehabilitation suggested risk of recidivism).
Angle asserts that none of these reasons is “compelling,”
but his contention is obviously subjective and, regardless,
misunderstands the nature of our review. Our task is
simply to assess whether the overall prison sentence
imposed by the district court is reasonable in light of the
justifications for that sentence. E.g., United States v. Perez,
581 F.3d 539, 548 (7th Cir. 2009); United States v. McKinney,
543 F.3d 911, 913 (7th Cir. 2008). The sentencing guide-
lines are advisory; the imprisonment range is one of the
factors enumerated in 18 U.S.C. § 3553(a), but a district
court does not need a “compelling” reason to exceed the
range. United States v. Nelson, 129 S. Ct. 890, 892 (2009);
United States v. Kirkpatrick, 589 F.3d 414, 415-16 (7th Cir.
2009). That was the point of Kimbrough v. United States,
552 U.S. 85 (2007), which, after our last remand, clarified
12 No. 08-2087

that a district court is free to weigh any sentencing factor
differently than the Sentencing Commission, even in a
typical case. Kimbrough, 552 U.S. at 101; United States v.
Alldredge, 551 F.3d 645, 647 (7th Cir. 2008). All that
matters is that the sentence imposed be reasonable in
relation to the “package” of reasons given by the court,
and in that sense Kimbrough has eroded the premise in our
last remand of requiring the district to quantify how
Angle’s situation exceeded a “mine run” application of
§ 2G2.2(b)(5). See Kimbrough, 552 U.S. at 110; McKinney, 543
F.3d at 913. The district court did exactly what we asked
in explaining its application of subsection (b)(4), but, as
we now recognize, it was also within the court’s power
to disagree with the weight given by the Sentencing
Commission to the “pattern of abuse” adjustment.
That brings us to the final reason given by the district
court for its sentence: the imprisonment range that
Angle would have faced under the 2006 version of the
guidelines in effect when he was last sentenced. Angle
principally contends that the language of our remand
precluded the court from taking notice of revisions to
§ 2G2.2, but we imposed no such limitation. Angle is
correct in assuming that a district court must adhere to
the scope of a remand from this court, United States v.
White, 406 F.3d 827, 831 (7th Cir. 2005), but the scope of
any remand is determined from reading all, not part, of
an opinion, United States v. Husband, 312 F.3d 247, 251 (7th
Cir. 2002); United States v. Parker, 101 F.3d 527, 528 (7th
Cir. 1996). After oral argument in Angle’s third appeal, his
lawyer notified us that Angle had been apprised of the
possibility that his fourth sentencing would be governed
No. 08-2087 13

by the updated guidelines, and we responded with the
observation that applying the current guidelines on
remand would not raise an ex post facto concern; we
did not imply that using the current guidelines would
exceed the scope of our remand. Angle III, 216 F. App’x at
559 n.1. Our decision in Angle III was released before
this court clarified that, under 18 U.S.C. § 3742(g), the
guidelines in effect at the time of the original sentencing
must be used again when an appeal results in an order
for resentencing, United States v. Tanner, 544 F.3d 793,
795 (7th Cir. 2008), but the force of this statutory limita-
tion does not alter the scope of the remand we contem-
plated. Moreover, even though § 3742(g) precluded the
district court from applying the 2006 guidelines, the
statute did not bar the court from consulting the Sen-
tencing Commission’s current views as a guide to its
exercise of Booker discretion. United States v. Johnson, 427
F.3d 423, 427 (7th Cir. 2005); United States v. Coe, 220 F.3d
573, 578 (7th Cir. 2000). And that is all the district court
did here. To quote the district court, “it would be impossi-
ble to ignore the perverse fact that, were Angle to be
sentenced for the same conduct under the current guide-
lines, his advisory range would be 360 months to life,
and the court would need to explain why a sentence of
less than 360 months is appropriate.”
Angle also contends that the district court’s assessment
of his guidelines range under the 2006 version of § 2G2.2
was inaccurate. But this assertion really comes down to
his belief that the court did not adequately explain its
conclusion that, under the 2006 guidelines, he would
receive a 5-level increase for intending to trade
14 No. 08-2087

child pornography for other child pornography, see
U.S.S.G. § 2G2.2(b)(3)(B) (2006), plus a 4-level increase for
possessing 300 to 600 images of child pornography, id.
§ 2G2.2(b)(7) (2006). Before Angle’s latest resentencing,
however, the probation officer revised the presentence
report to explain that Angle would be eligible for both
increases. Angle did not object on the ground that the
probation officer’s proposed findings were not sup-
ported by the evidence, and the district court relied on
those findings, which the court was entitled to do.
See United States v. Heckel, 570 F.3d 791, 795 (7th Cir. 2009);
United States v. Salinas, 365 F.3d 582, 587 (7th Cir. 2004).
Had Angle wished to cast doubt on the reliability of the
information in the revised presentence report, he was
obligated to dispute its accuracy, which he did not do. See
Heckel, 570 F.3d at 795. This final argument, then, like
Angle’s previous contention, is without merit. We thus
uphold the 300-month total imprisonment.

B. Special Condition of Supervised Release
Angle makes one additional argument that arose for the
first time after our last remand. At the final resentencing,
the district court imposed as a special condition of super-
vised release that Angle “shall not have personal access
to computer Internet services.” This condition was not
suggested in advance but first raised in open court during
sentencing. Angle objected to that condition, and on
appeal he contends that the district court was required
to give him notice before imposing such a condition and
that barring him from using the Internet is both unneces-
sary and unreasonable.
No. 08-2087 15

We review special conditions of supervised release for
an abuse of discretion. Angle I, 234 F.3d at 346. When
imposing supervised release, a district court must
include several mandatory conditions, may impose any
condition set forth as a discretionary condition of proba-
tion, and may also include any other condition it
considers to be appropriate. See 18 U.S.C. § 3583(d);
§ 3563(b)(1)-(10). The conditions however, must be rea-
sonably related to (1) the defendant’s offense, history and
characteristics; (2) the need for adequate deterrence; (3) the
need to protect the public from further crimes of the
defendant; and (4) the need to provide the defendant with
treatment. 18 U.S.C. § 3583(d); United States v. Holm, 326
F.3d 872, 877-78 (7th Cir. 2003). They must also “involve
no greater deprivation of liberty than is reasonably neces-
sary” to effectuate sentencing purposes. 18 U.S.C.
§ 3583(d)(2). Although we have expressed skepticism
about the reasonableness of banning Internet use
entirely, see United States v. Silvious, 512 F.3d 364, 371 (7th
Cir. 2008); Holm, 362 F.3d at 877-78, we nonetheless have
left open the possibility that such a condition might be
justified if the Internet was used to commit the crime of
conviction, Silvious, 512 F.3d at 371; United States v. Scott,
316 F.3d 733, 735 (7th Cir. 2003).
Angle first argues that the court was required to give
notice of its intent to impose this condition of supervised
release because it was analogous to a departure from the
guidelines. This argument fails. Post-Booker, which made
the guidelines advisory, Angle III, 216 Fed. App’x at 560,
and four sentencing hearings, Angle could have had no
expectations for a sentence within guideline range. As
16 No. 08-2087

the guidelines contemplate a term of supervised release,
and provide the district court with broad discretion in
imposing appropriate conditions for the supervised
release, Angle could not reasonably believe that an
Internet ban was so “out of the ordinary,” as to require
notice. United States v. McKissic, 428 F.3d 719, 725 (7th Cir.
2005). In fact, the 2006 guidelines which the district court
had the discretion to consult, specifically contemplate
limiting the use of a computer in cases where the defen-
dant used a computer for sex offenses. U.S.S.G
§ 5D1.3(d)(7)(B) (2006).
Angle next argues that the condition is unnecessary
and unreasonable. We disagree. In 1997 and 1998, when
the Internet was fairly new, Angle was convicted of using
the Internet to solicit a minor for sex. He also used
the Internet to set up a pornography trade with a distrib-
uter, and possessed an extensive amount of child pornog-
raphy on computer diskettes and zip disks. Furthermore,
his use of the Internet was not integrally connected
to his profession as he was previously employed as a
salesman and mechanic. These facts easily distinguish
Angle from the defendant in Holm who was convicted
of simply possessing child pornography and used the
computer and Internet extensively in his occupation as
a information systems technologist. Finally, unlike the
district court in Holm, here the district court did not
impose a complete ban on the Internet, disallowing only
“personal” access to Internet services. Under these cir-
cumstances, we cannot conclude that the district court
abused its discretion in thwarting Angle from gaining
personal access to the Internet during the period of his
No. 08-2087 17

supervised release. See, e.g., United States v. Zinn, 321
F.3d 1084, 1092-93 (11th Cir. 2003); United States v. Paul,
274 F.3d 155, 166-66 (5th Cir. 2001); United States v. Crandon,
173 F.3d 122, 127-28 (3d Cir. 1999); c.f. United States v.
Perazza-Mercado, 553 F.3d 65, 70 (1st Cir. 2009) (holding
that total Internet ban unrelated to charged offense
was impermissibly broad).

III. CONCLUSION
Accordingly, we A FFIRM the district court’s sentence.

3-15-10