In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3364
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R OBERT R ODGERS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 09 CR 50001—Frederick J. Kapala, Judge.
A RGUED A PRIL 2, 2010—D ECIDED JULY 9, 2010
Before F LAUM, W OOD , and H AMILTON, Circuit Judges.
F LAUM, Circuit Judge. The defendant, Robert Rodgers,
appeals his sentence for possession of child pornography.
Rodgers pleaded guilty to possessing over 2,200 images
and videos of child pornography. He was sentenced to
78 months of imprisonment, the low end of the guide-
line range determined by the district court. Rodgers
raises three challenges to the manner in which his guide-
line range was calculated. First, he argues that an en-
2 No. 09-3364
hancement to his guideline range imposed because of
the number of images he possessed is unconstitutional
because it was legislated directly by Congress. Second,
he argues that the sentencing enhancement for sadistic,
masochistic, or violent images impermissibly double-
counts the conduct already covered by the base offense
level of the applicable guideline. Finally, he argues that
the government failed to prove these enhancements
because the evidence relied upon was given in violation
of the “advocate-witness rule.” Finding these arguments
without merit, we affirm.
I. Background
On January 6, 2009, the government charged Rodgers
with possessing images of child pornography in violation
of 18 U.S.C. § 2252A(a)(5)(B). On February 20, 2009,
Rodgers pleaded guilty pursuant to a written plea agree-
ment.
The facts underlying the offense were laid out in para-
graphs six and seven of the agreement. Rodgers admitted
that he possessed, through a commercial website, images
of child pornography over 2,200 times between January 18
and January 30, 2006, and that he “wiped” his computer
of evidence of his possession of child pornography on a
daily basis. He also admitted, as relevant conduct, that
he possessed multiple images and a video of unsuccess-
fully deleted child pornography on October 18, 2006, and
that he had viewed child pornography on two of his
business computers and deleted evidence from those
computers of that possession. The plea agreement did not
No. 09-3364 3
describe the specific nature of the images and videos
at issue, other than that they constituted child pornogra-
phy as defined in 18 U.S.C. § 2256(8)(A).
After Rodgers pleaded guilty, the court ordered the
government to submit its version of the offense to the
probation office within 14 days and the defendant to
submit a version of the offense within 21 days. The gov-
ernment submitted a version of the offense that
adopted the factual basis and relevant conduct
described in paragraphs six and seven of the plea agree-
ment and advised the probation officer to contact the
Assistant United States Attorney (AUSA) working on
the case if additional information was needed. Rodgers
did not submit his own version of the offense or object
to the government’s version.
While preparing the report, the probation officer con-
tacted the AUSA assigned to the case to gather addi-
tional information about the offense. In addition to in-
quiring about several other details of Rodgers’s offense,
the probation officer asked for the government’s position
as to how the images and videos possessed by Rodgers
portrayed sadistic or masochistic conduct or other depic-
tions of violence. The AUSA responded to these in-
quiries based on a review of the investigative reports
and evidence, in consultation with the case agent.
The information was then included in the presentence
report (PSR).
After the PSR was prepared, it was distributed to
counsel for their consideration. The PSR stated that the
description of the offense conduct came from the facts
in the plea agreement and the additional information
4 No. 09-3364
provided by the AUSA assigned to the case. Rodgers did
not object to the factual findings contained in the PSR.
The sentencing hearing was held on September 4, 2009.
In response to a specific question from the court, Rodgers’s
counsel stated that they had no objection to the factual
findings in the PSR. The court then adopted the PSR’s
findings and its guidelines calculation. Rodgers objected
to the five-level enhancement for the number of images
under U.S.S.G. § 2G2.2(b)(7)(D) and the two-level en-
hancement for the use of a computer under U.S.S.G.
§ 2G2.2(b)(6). The district court rejected these argu-
ments and sentenced Rodgers to 78 months of imprison-
ment, the bottom of the guideline range.
II. Analysis
Rodgers first argues that U.S.S.G. § 2G2.2 is unconstitu-
tional because it was legislated directly by Congress,
rather than promulgated by the United States Sentencing
Commission based on empirical data. This is a question
of law which we review de novo. See United States v.
Nagel, 559 F.3d 756, 759 (7th Cir. 2009).
Rodgers takes the position that Mistretta v. United States,
488 U.S. 361 (1989), requires that a sentencing guideline
be promulgated by the United States Sentencing Com-
mission in order for it to be constitutional. He acknowl-
edges that Mistretta does not state this directly, but
argues that it follows from language in the opinion
stating that the reputation of the judiciary “may not be
borrowed by the political Branches to cloak their work in
the neutral colors of judicial action.” Id. at 407.
No. 09-3364 5
The guideline at issue here derives from the Protect Act,
Pub. L. 108-21, § 401(i). Rodgers criticizes the Protect
Act for adopting this guideline without the benefit of
the Sentencing Commission’s usual empirical study,
adopting an argument developed by federal defender
Tory Stabenow in a 2008 paper, Deconstructing the Myth of
Careful Study: A Primer on the Flawed Progression of the
Child Pornography Guidelines. We have previously con-
sidered these arguments and concluded that regardless
of whether a district court may consider the empirical
basis of U.S.S.G. § 2G2.2 when crafting a sentence, there
is no requirement that a district court must do so. See
United States v. Huffstatler, 571 F.3d 620, 623 (7th Cir. 2009).
Rodgers attempts to distinguish Huffstatler by arguing
that the Huffstatler court did not consider his argument
that Mistretta forbids Congress from directly legislating
sentencing guidelines.
Rodgers’s argument rests on a mischaracterization
of Mistretta. In Mistretta, the Supreme Court rejected a
challenge to the then-mandatory guideline system
based on the theory that the guidelines delegated too
much legislative authority to the Sentencing Commission
and violated the separation of powers by requiring
federal judges to serve on the Commission. 488 U.S. at
412. In concluding that neither the nondelegation doc-
trine nor the separation-of-powers doctrine prohibited
the legislature from seeking the advice of judges when
formulating guideline ranges, the Court relied on the
fact that Congress had constrained the discretion of the
Commission. For example, the Court noted that Congress
had mandated that the guidelines “require a term of
6 No. 09-3364
confinement at or near the statutory maximum for
certain crimes of violence and for drug offenses, particu-
larly when committed by recidivists.” Id. at 376. Thus,
the starting point for the Mistretta opinion was that Con-
gress could legitimately create sentencing guidelines, just
as it creates the statutory maximum and minimum sen-
tences. See also United States v. LaBonte, 520 U.S. 751, 757
(1997) (holding that the Sentencing Commission “must
bow to the specific directives of Congress”). Indeed, the
dissent in Mistretta argued that only Congress could
validly promulgate guidelines. 488 U.S. at 413 (Scalia, J.,
dissenting). If legislators do not “cloak their work” in
neutral garb of the judiciary when they ask judges to
serve on a sentencing commission while substantially
constraining the work of that commission, surely they
do not do so when they bypass the commission al-
together and legislate directly.
That is not to say that the provenance of a particular
guideline is wholly irrelevant to sentencing. Now that
the guidelines are advisory, a district court may vary
from the guidelines when it concludes that they do not
reflect “empirical data and national experience.”
Huffstatler, 571 F.3d at 623 (citing Kimbrough v. United
States, 552 U.S. 85 (2007)). Just as in Huffstatler, however,
we need not now decide whether a district court may
vary from the child pornography guidelines on policy
grounds. The district court noted on the record that it
would chose to apply § 2G2.2 regardless of whether it
had the freedom to depart on policy grounds. Just as a
district court may still validly apply the crack guidelines,
even though it has discretion to depart from them, a
No. 09-3364 7
district court may choose to apply the child pornography
guidelines despite their somewhat unusual provenance.
Huffstatler, 571 F.3d at 624.
Rodgers’s next argument is that the sentencing en-
hancement for sadistic or masochistic conduct or other
depictions of violence, which is contained in U.S.S.G.
§ 2G.2(b)(4), impermissibly double counts conduct
already taken into account by the base offense level for
possessing child pornography. He urges us to overrule
United States v. Myers, 355 F.3d 1040 (7th Cir. 2004), in
which we rejected this argument.
At the outset, we note that Rodgers has forfeited this
issue by not raising it at sentencing. In the district court,
Rodgers did not argue that applying U.S.S.G. § 2G.2(b)(4)
would constitute impermissible double counting. Thus,
we review for plain error, asking whether (1) an error
occurred, (2) the error is plain, and (3) the error affected
the defendant’s substantial rights. United States v. Wain-
wright, 509 F.3d 812, 815 (7th Cir. 2007); United States
v. Olano, 507 U.S. 725, 731-32 (1993).
We can stop at the first inquiry, as no error occurred.
We decline Rodgers’s invitation to revisit Myers. In our
circuit, impermissible double counting occurs “only if the
offense itself necessarily includes the same conduct as the
enhancement.” United States v. Senn, 129 F.3d 886, 897 (7th
Cir. 1997) (emphasis in original); see also United States v.
Bell, 598 F.3d 366, 372-73 (7th Cir. 2010). The relevant
statute, 18 U.S.C. § 2256(8)(a), defines “child pornography”
to include “any visual depiction . . . of sexually explicit
conduct, where the production of such visual depiction
8 No. 09-3364
involves the use of a minor engaged in sexually explicit
conduct.” “Sexually explicit conduct,” in turn, is defined as
“sexual intercourse . . . ; bestiality; masturbation; sadistic
or masochistic abuse; or lascivious exhibition of the
genitals or pubic area of any person.” Id. § 2256(8)(2)(a).
We have found that § 2G2.2(b)(4) applies to acts likely to
cause physical pain, Myers, 355 F.3d at 1043-44, as well as
“sexual gratification which is purposefully degrading and
humiliating, conduct which causes mental suffering or
psychological or emotional injury in the victim.” United
States v. Turchen, 187 F.3d 735, 739 (7th Cir. 1999). Rodgers
also suggests that Turchen holds that any depiction of an
“abnormal sexual passion” would trigger § 2G2.2(b)(4), but
this argument rests on a blatant misquotation of Turchen.
The full quotation defines masochism as an “abnormal
sexual passion in which one finds pleasure in . . . being
abused or dominated.” 187 F.3d at 739. Nowhere does
Turchen suggest that all “abnormal sexual passions”
trigger the enhancement.
A straightforward reading of Turchen and 18 U.S.C.
§ 2256(8)(2)(a) makes clear that the statute covers more
conduct than the enhancement. An image of a minor
alone could constitute “lascivious exhibition of the geni-
tals” without additionally depicting conduct that is
likely to cause physical pain or is purposefully humili-
ating and degrading. See Myers, 355 F.3d at 1044. Thus, the
application of U.S.S.G. § 2G2.2(b)(4) properly took into
account aggravating circumstances, not the base offense
conduct.
Rodgers’s final argument is that the district court im-
properly relied on evidence not in the record in reaching
No. 09-3364 9
his sentence. He objects that portions of the PSR came
from the AUSA’s review of the case files and argues that
this violates the general prohibition against a lawyer
acting as both counsel and witness in the same case. See
United States v. Ewing, 979 F.2d 1234 (7th Cir. 1992). With-
out the evidence from the AUSA that was included in
the PSR, Rodgers argues, there is nothing to support
the district court’s application of the four-level enhance-
ment for sadistic or masochistic material.
Rodgers’s argument is waived, and rests on a misunder-
standing of the sentencing process. Rodgers filed no
objections to the factual findings in the PSR. When asked
on the record at sentencing if he had any such objections,
his counsel stated, “No, we do not.” This amounts to
the intentional relinquishment of a known right which
extinguishes any error and precludes appellate review.
Olano, 507 U.S. at 733. A district court is permitted to
adopt the facts of the PSR as support for its findings and
conclusions when the defendant fails to alert the court
to potentially inaccurate or unreliable information. See
United States v. Sonsalla, 241 F.3d 904, 907 (7th Cir. 2001).
The AUSA never testified in this case, so Ewing is inap-
plicable. Rodgers’s argument is better understood as a
claim that the record did not support the sentencing
court’s factual findings. But to the extent that the
record is lacking in this case, it is only because
Rodgers relieved the government of the burden of intro-
ducing the photographs and videos into evidence. This
was likely a strategic choice—Rodgers had many sup-
porters in attendance at his hearing, and he may also
have been attempting to gain the sympathy of the
district court by cooperating. Once having waived a
10 No. 09-3364
challenge to the factual basis of the PSR, Rodgers
cannot now seek to invalidate his sentence for lack of
evidentiary support.
III. Conclusion
For the foregoing reasons, we A FFIRM the judgment of
the district court.
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