In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3786
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ICHAEL E. N ANCE,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 09 CR 30048—Michael J. Reagan, Judge.
A RGUED A PRIL 8, 2010—D ECIDED JULY 12, 2010
Before R IPPLE, M ANION, and T INDER, Circuit Judges.
M ANION, Circuit Judge. Michael Nance pleaded guilty
to receiving child pornography. At sentencing, he
objected to the use of an earlier conviction in calculating
his criminal history score. He also argued that the
other child pornography he possessed at the time he
received the images underlying his conviction was not
relevant conduct for which he could receive offense-
level enhancements. The district court overruled both
2 No. 09-3786
objections and determined Nance’s advisory Guidelines
range was 151-188 months based on a criminal history
category of III and a total offense level of 32. After dis-
cussing the § 3553(a) factors, the court sentenced him to
180 months’ imprisonment. Nance appeals, arguing the
district court incorrectly calculated both his criminal
history category and his total offense level. He also
claims his sentence was procedurally unsound and sub-
stantively unreasonable. We affirm.
I.
In early 2007, 25-year-old Michael Nance began a
“relationship” with 12-year-old J.G. About a year later,
Nance was arrested after J.G.’s mother came home early
and discovered him hiding under a pile of blankets in
J.G.’s bedroom. Police found an empty liquor bottle
under J.G.’s bed, and Nance admitted buying her alco-
hol. Nance was charged with and convicted of crim-
inal trespass to a residence and giving alcohol to a minor.
He received a sentence of six months’ supervision and
a $250 fine.
In November 2008, J.G.’s mother discovered text mes-
sages on J.G.’s phone that implied she and Nance were
sexually involved. When confronted, J.G. admitted
having sex with Nance. A few days later, J.G.’s mother
obtained a protective order against Nance that forbade
him from contacting J.G. Police arrested Nance for vio-
lating that order a few days later. Then, in Decem-
ber 2008, J.G.’s mother informed police that J.G. was
missing. Police found Nance and J.G. in a motel room,
No. 09-3786 3
along with a liquor bottle, condoms, and sexual stimu-
lating gel. Nance was arrested again, charged with child
abduction, and eventually released on bond.
Nance was soon arrested for violating a condition of
his bond. During the ensuing investigation, Nance’s
mother allowed police to seize several computer hard
drives from his bedroom. One of the hard drives con-
tained eight still images and two videos of child pornog-
raphy. Seven of the still images and one of the videos
were of J.G., which, upon Nance’s request, she had taken
with her mobile phone and sent to his mobile phone
on November 16, 2008. Nance had previously down-
loaded the non-J.G. video from a peer-to-peer network in
August 2008. It is not known when he received the
single non-J.G. still image.
Nance was indicted for and pleaded guilty to receiving
child pornography in violation of 18 U.S.C. § 2252A(a)(2).
The pre-sentence investigation report (PSR) calculated
his total offense level to be 34 with a criminal history
category of III. Nance filed written objections to the
PSR, arguing, among other things, that his sentence for
criminal trespass and providing alcohol to a minor
was relevant conduct and thus should not be used in
calculating his criminal history score. He also argued
that the video and image that did not feature J.G. should
not be considered relevant conduct on which enhance-
ments under U.S.S.G. § 2G2.2 could be predicated.
The district court rejected both arguments. It concluded
that because Nance’s earlier conviction had been consid-
ered as part of a pattern of activity involving the sexual
4 No. 09-3786
exploitation of a minor under § 2G2.2(b)(5), under ap-
plication note 3 to § 2G2.2 it could be used to figure his
criminal history category—even though relevant conduct
normally does not receive criminal history points. The
court also found that the video and image not featuring
J.G. were relevant conduct. Based on that finding, it
enhanced Nance’s offense level by two levels under
§ 2G2.2(b)(2) because the material involved a prepubes-
cent minor less than 12 years old, and by three levels
under § 2G2.2(b)(7)(B) because the offense involved at
least 150 but fewer than 300 images. 1 The district court
calculated Nance’s advisory Guidelines range to be 151-
188 months based on a criminal history category of III
and a total offense level of 32.2 Before considering the
§ 3553(a) factors, the court noted that it would give the
same sentence regardless of whether it had ruled dif-
ferently on the parties’ objections to the PSR. The judge
then stated he was “throw[ing] [the Guidelines range] out
1
Nance did not contest a two-level enhancement under
§ 2G2.2(b)(7)(A): the video and still images of J.G. totaled at
least 10 but less than 150 images. Rather, he opposed the
court’s counting the non-J.G. video and still image, thereby
boosting the total number of images involved to 150 (and
over) and permitting a three-level enhancement under
§ 2G2.2(b)(7)(B). Hence, his challenge was to that net one
additional level enhancement.
2
The court sustained Nance’s objection to a two-level ob-
struction of justice enhancement recommendation in the PSR,
which accounts for the two-level difference in his total offense
level calculated by the court (32) as compared to the PSR (34).
No. 09-3786 5
the window because I think that the sentencing in this
case can be uniquely tailored without resorting to a
formulaic reliance on numbers.” After discussing the
§ 3553(a) factors, the district court sentenced Nance to
180 months’ imprisonment. Nance appeals.
II.
On appeal, Nance challenges three aspects of his sen-
tence: (1) the district court’s computation of his criminal
history category using his sentence for criminal trespass
and providing alcohol to a minor; (2) the court’s finding
that the non-J.G. video and image were relevant
conduct that supported enhancements under U.S.S.G.
§§ 2G2.2(b)(2) and (7)(B); and (3) the soundness of the
court’s sentencing procedures and the substantive rea-
sonableness of the sentence. We address each issue in turn.
A.
First, Nance argues that the district court improperly
used his previous sentence for criminal trespass and
providing alcohol to a minor in determining his criminal
history category. By the district court’s calculations,
Nance had six criminal history points, which placed him
in criminal history category III. Three of those points
were based on his earlier sentence for criminal trespass
and providing alcohol to a minor: he received one point
under § 4A1.1(c) because that sentence was not included
in § 4A1.1(a) or (b) (i.e., it was a prior sentence of less
than sixty days) and two points under § 4A1.1(d) because
6 No. 09-3786
he committed the instant offense while serving that
sentence. Nance claims that the acts underlying that
sentence were relevant conduct to his offense of convic-
tion and that the district court therefore erred in
assigning him three criminal history points for that sen-
tence. By Nance’s calculation, he had only three other
criminal history points, which places him in category II
and thus a lower imprisonment range. We review a
district court’s calculation of a defendant’s criminal
history category based on previous sentences de novo.
United States v. Spence, 450 F.3d 691, 695 (7th Cir. 2006).
Our discussion of this issue requires us to traverse
several interconnected parts of the Guidelines and com-
mentary. Under § 4A1.1(c) and (d), sentencing courts
are instructed to add points to a defendant’s criminal
history score for certain prior sentences.3 A “prior sen-
tence” is defined in § 4A1.2(a)(1) as “any sentence previ-
ously imposed upon adjudication of guilt . . . for
conduct not part of the instant offense.” Conduct is part
of the instant offense if it qualifies as relevant conduct
to the instant offense under § 1B1.3. U.S.S.G. § 4A1.2,
3
To be precise, § 4A1.1(d) refers to a “criminal justice sen-
tence” rather than a “prior sentence.” According to applica-
tion note 4 to § 4A1.1, a “a ‘criminal justice sentence’ means
a sentence countable under § 4A1.2 having a custodial or
supervisory component.” Section 4A1.2(a) and its commentary
is where “prior sentence” is defined. We will assume without
deciding this means that criminal history points may be as-
signed under § 4A1.1(d) only for “prior sentences.” But see
United States v. Weddle, 30 F.3d 532, 537 (4th Cir. 1994).
No. 09-3786 7
cmt. n.1. 4 Therefore, when calculating a defendant’s
criminal history, a district court ordinarily cannot
consider previous sentences for acts that qualify as
relevant conduct. United States v. Bryant, 557 F.3d 489,
503 (7th Cir. 2009). The reason for this prohibition is “to
avoid double counting and ensure consistency with
other guideline provisions.” U.S.S.G., App. C, amend. 493,
at 318 (1993). Double counting is generally permissible
unless the Guidelines say otherwise or there is a com-
pelling basis for implying a prohibition. United States v.
Beith, 407 F.3d 881, 888 (7th Cir. 2005).
Relevant conduct is defined in several ways by the
Guidelines, one of which is “any other information speci-
fied in the applicable guideline.” U.S.S.G. § 1B1.3(a)(4).
One of the guidelines under which the district court
enhanced Nance’s sentence was § 2G2.2(b)(5), which
directs a five-level increase “[i]f the defendant engaged
in a pattern of activity involving the sexual abuse or
exploitation of a minor . . . .” According to the commen-
tary, such a pattern encompasses “any combination of
two or more separate instances of sexual abuse or
sexual exploitation of a minor by the defendant, whether
or not the abuse or exploitation (A) occurred during the course
4
We understand the cross-reference to § 1B1.3 in § 4A1.2, cmt.
n.1 as advising courts to use § 1B1.3(a) to determine relevant
conduct, even though that provision defines relevant conduct
for purposes of chapters two and three of the Guidelines and
§ 1B1.3(b) defines relevant conduct for chapter four (where
the criminal history provisions are listed). See United States
v. Smith, 991 F.2d 1468, 1471-72 (9th Cir. 1993).
8 No. 09-3786
of the offense.” U.S.S.G. § 2G2.2, cmt. n.1 (emphasis added).
In amending the commentary to include the italicized
language, the Sentencing Commission stated that the
revision was, in part, a response to United States v. Chap-
man, 60 F.3d 894 (1st Cir. 1995), where the First Circuit
held that the pattern of activity enhancement could not
be based on past sexual abuse or exploitation that was
unrelated to the offense of conviction. U.S.S.G., App. C,
amend. 537, at 373 (1997). The Commission explained
that such previous conduct may indeed be considered,
which means “the conduct considered for purposes of
the ‘pattern of activity’ enhancement is broader than
the scope of relevant conduct typically considered under
§ 1B1.3 (Relevant Conduct).” Id. This court recognized
and deferred to that determination in United States v.
Lovaas, 241 F.3d 900, 904 (7th Cir. 2001). Thus, application
note 1 to § 2G2.2 specifies that relevant conduct for the
§ 2G2.2(b)(5) pattern enhancement is more expansive
than the conduct usually deemed relevant under
§ 1B1.3(a). Id.; United States v. Williamson, 439 F.3d 1125,
1139-40 (9th Cir. 2006).
The district court determined that Nance’s conviction
for providing alcohol to a minor and criminal trespass
was relevant conduct and justified a § 2G2.2(b)(5) en-
hancement. Nance did not challenge that enhancement;
rather, he challenged the district court’s counting his
sentence based on that relevant conduct in his criminal
history score. Both parties and the district court correctly
agreed that under § 4A1.2, cmt. n.1, relevant conduct
ordinarily is not considered in calculating a defendant’s
criminal history score. Bryant, 557 F.3d at 503. But the
No. 09-3786 9
district court concluded that application note 3 to § 2G2.2
is an exception to that general rule. Whether that con-
clusion was correct is the key question we now address.
Keeping in mind the general rule that relevant
conduct is excluded from assignment of criminal history
points, we turn to the text of the note: “A conviction
taken into account under subsection (b)(5) is not ex-
cluded from consideration of whether that conviction
receives criminal history points pursuant to Chapter
Four, Part A (Criminal History).” U.S.S.G. § 2G2.2, cmt.
n.3. That language demonstrates that even though
relevant conduct is normally precluded from receiving
criminal history points, a conviction that comes within
the relevant conduct considered under § 2G2.2(b)(5)
is not necessarily so precluded. Based on its plain lan-
guage, then, we conclude that application note 3 to
§ 2G2.2 carves out an exception to the general rule that
relevant conduct is not factored in a defendant’s
criminal history score.
That conclusion comports with our decision in United
States v. McCaffrey, 437 F.3d 684 (7th Cir. 2006), where
we interpreted application note 3 to be an exception to
the usual proscription against double counting. There,
the defendant pleaded guilty to receiving and possessing
child pornography. Id. at 686. At sentencing, the district
court enhanced his sentence by five levels under what
is now § 2G2.2(b)(5) based on his previous unprosecuted
but uncontroverted acts of sexual abuse. Id. at 687. The
sentencing court also concluded that a five-level
increase in the defendant’s criminal history score was
10 No. 09-3786
warranted based on those same past instances of sexual
abuse. Id. On appeal, we rejected the defendant’s ar-
gument that the district court had violated the usual
prohibition against double counting by enhancing the
defendant’s offense level and criminal history score
based on the same prior acts. Id. at 688. We reasoned that
the previous criminal acts should be considered the
equivalent of prior convictions taken into account
under the current § 2G2.2(b)(5) and thus came within
the double counting exception of what is now applica-
tion note 3 to § 2G2.2. Id.
The Tenth Circuit reached a similar conclusion in
United States v. Groves, 369 F.3d 1178 (10th Cir. 2004). There,
the defendant pleaded guilty to receiving child pornog-
raphy, and the district court enhanced his sentence by
five levels under what is now § 2G2.2(b)(5) based, in part,
on two earlier convictions for child molestation. Id. at
1181. The sentencing court also figured the defendant’s
criminal history score using those convictions. Id. at
1182. The court of appeals held that the district court
violated the Ex Post Facto clause by relying on what is
now application note 3 (passed after the commission of
the defendant’s criminal conduct) to include those con-
victions in his criminal history score. Id. at 1188.
Relevant here, the court’s decision turned on its under-
standing that the addition of that note altered the
previous rule that “convictions that had already been
considered as relevant conduct under U.S.S.G. § 2G2.2(b)[5]
could not have been used to calculate the defendant’s
criminal history,” to now “expressly allow[ ] this kind of
double counting.” Id. at 1187-88 (emphases added). Hence,
No. 09-3786 11
our holding that application note 3 permits convictions
considered as relevant conduct under § 2G2.2(b)(5) to be
counted in a defendant’s criminal history score is sup-
ported by our own precedent in McCaffrey and the
Tenth Circuit’s interpretation of the note in Groves.
In response, Nance argues that application note 3
applies only to unrelated convictions—i.e., those that
would not otherwise be relevant conduct but for
§ 2G2.2(b)(5)—thereby precluding an objection for
double counting for such conduct while leaving the
prohibition against double counting of relevant conduct
in place for all other convictions. But the text of the note
does not distinguish between types of convictions; it
simply says “a conviction.” Hence, Nance’s reading runs
counter to the plain language of the note.
Even if we were to read the text of the note as ambigu-
ous, we see no reason to prefer Nance’s reading. Indeed,
it would render some parts of the applicable guide-
lines either arbitrary or redundant. There is nothing
mysterious about the use of the term “relevant conduct”
in § 4A1.2, cmt. n.1; as we have explained, the purpose
of this cross reference is to create a general bar on using
the same conduct in calculating a defendant’s offense
level and criminal history category. If conduct that
forms a pattern of activity under § 2G2.2(b)(5)—but does
not otherwise fall under § 1B1.3(a)—is relevant conduct
for purposes of the double counting bar, Nance offers
no principled reason why some, but not all, relevant
conduct considered under § 2G2.2(b)(5) should be
excepted from the bar. On the other hand, if such a
12 No. 09-3786
pattern of activity is not relevant conduct (notwith-
standing the plain language of the applicable guidelines),
it would be unaffected by the double counting bar in
the first place.
Nance also contends that our interpretation of applica-
tion note 3 will effectively require all convictions under-
lying a § 2G2.2(b)(5) enhancement to count as crim-
inal history, which, he says, contradicts the permissive
phrasing of the note—“is not excluded from consideration
of whether that conviction receives criminal history
points pursuant to Chapter Four, Part A (Criminal His-
tory).” (emphasis added). Not so. Part A to Chapter
Four has many other conditions that must be satisfied
in order for a “prior sentence” to count as criminal history.
See, e.g., U.S.S.G. § 4A1.2(c) (excluding certain misde-
meanor and petty offense sentences); § 4A1.2(e) (limiting
look-back time period); § 4A1.2(g) (excluding sentences
imposed by a summary court martial or Article 15 pro-
ceeding); § 4A1.2(h) (excluding foreign sentences);
§ 4A1.2(i) (excluding tribal court sentences); § 4A1.2(j)
(excluding sentences for expunged convictions).
For the reasons mentioned, we affirm the district
court’s assignment of criminal history points to Nance
under § 4A1.1(c) and (d).
B.
Next, Nance contends that the district court incorrectly
concluded that the video and image depicting children
other than J.G. were relevant conduct that supported
No. 09-3786 13
enhancements under U.S.S.G. §§ 2G2.2(b)(2) and (7)(B). We
review a district court’s application of the Guidelines
de novo and its factual findings for clear error. United
States v. Bowlin, 534 F.3d 654, 661 (7th Cir. 2008).
Under U.S.S.G. § 1B1.3(a), district courts are instructed
to consider uncharged “relevant conduct” in calculating
a defendant’s offense level. United States v. Benitez, 92
F.3d 528, 536 (7th Cir. 1996). Conduct is relevant if it
fits within any of the four categories listed in U.S.S.G.
§ 1B1.3(a). See United States v. Soy, 413 F.3d 594, 613
(7th Cir. 2005). One type of relevant conduct includes
“all acts and omissions committed . . . by the defendant . . .
that occurred during the commission of the offense
of conviction.” U.S.S.G. § 1B1.3(a)(1)(A). In finding that
the non-J.G. video and image were relevant conduct,
the district court observed that Nance “actively
possessed the video and image of child pornography in
question at the same time that he was acquiring new
images involving J.G 5 .” Nance concedes he possessed
those materials when he received the images and video
of J.G. but argues that not all criminal acts contempora-
neous with the conduct underlying the offense of convic-
5
The district court also found that the video and image
were relevant conduct under § 1B1.3(a)(2) because they were
part of the same course of conduct or common scheme or plan
as the offense of conviction. Because we conclude the district
court’s relevant conduct finding under § 1B1.3(a)(1) was
not clearly erroneous, we need not discuss this alternative
finding.
14 No. 09-3786
tion are necessarily relevant conduct.6 True enough; we
have recognized that the relevant conduct guideline
is not boundless and have refused to allow sentencing
courts to use it to sweep in uncharged, wholly unrelated
criminality that occurred contemporaneously with the
charged conduct. See, e.g., United States v. Taylor, 272
F.3d 980, 983 (7th Cir. 2001); United States v. Ritsema, 31
F.3d 559, 567 (7th Cir. 1994).
But we also have rejected arguments of the sort Nance
advances here where the uncharged conduct bears some
relation to the offense of conviction. For example, in
United States v. Ellison, 113 F.3d 77 (7th Cir. 1997), we
upheld a district court’s finding that child pornography
possessed contemporaneously with the offense con-
duct—receipt of child pornography—was relevant con-
duct. There, the defendant pleaded guilty to receiving
6
It is undisputed that Nance downloaded the non-J.G. video
in August 2008, several months before he received the J.G.
materials in November 2008. But there is no evidence in the
record concerning when Nance acquired the non-J.G. image;
it could have been after Nance received the materials de-
picting J.G. and thus potentially not relevant conduct, at least
under § 1B1.3(a)(1). But Nance does not claim the inclusion of
that image as relevant conduct was improper because he did not
possess it during the commission of the offense of conviction, so the
argument is waived. Even if the image was improperly found
to be relevant conduct, such error was harmless because it
would not have affected his Guidelines range: the non-J.G.
video was alone sufficient to support the enhancements
under U.S.S.G. §§ 2G2.2(b)(2) and (7)(B).
No. 09-3786 15
a child pornography video, and the district court
enhanced his offense level by four levels under
U.S.S.G. § 2G2.2(b)(3) for possessing sadomasochistic
child pornography magazines at the time he received the
video. Id. at 79. On appeal, the defendant conceded that
his possession of the magazines was contemporaneous
with his receipt of the child pornography video, but
argued that, under our decision in Ritsema, his possession
of those materials was not relevant conduct under
§ 1B1.3(a)(1). Id. at 83. We rejected that argument, distin-
guishing Ritsema: “Ellison’s contemporaneous receipt of
new pornography and possession of older pornography
is far from the unusual type of contemporaneous, yet
‘wholly remote’ criminality we were uncomfortable
including as relevant in Ritsema.” Id. We also observed
that the Guidelines’ goal of taking into account all
uncharged conduct indicating the seriousness of the
charged conduct was served by the district court’s en-
hancement, particularly because Ellison’s receipt and
possession of child pornography violated the same
statute and demonstrated his inclination toward
sexually exploiting minors.7 Id.
Ellison squarely controls our resolution of this issue. Like
the defendant in Ellison, Nance received child porn and
had his offense level enhanced based on the district
7
Since Ellison was decided, two other circuits have agreed
with its analysis. United States v. Stulock, 308 F.3d 922, 926
(8th Cir. 2002); United States v. Dunlap, 279 F.3d 965, 966 n.3
(11th Cir. 2002) (per curiam).
16 No. 09-3786
court’s finding that other child pornography materials
he illegally possessed at the time he received the
charged materials were relevant conduct. So under
Ellison, the district court did not err in determining the
non-J.G. materials were sufficiently related to the J.G.
materials underlying the offense of conviction to be
considered relevant conduct and justify enhancement of
his offense level under U.S.S.G. §§ 2G2.2(b)(2) and (7)(B).
Moreover, the goal of the relevant conduct guide-
line—taking into account all germane uncharged conduct
demonstrating the seriousness of the offense conduct—is
served equally here as in Ellison.
C.
Last, we address Nance’s argument that the sentence
was procedurally flawed and substantively unreasonable.
Our review of the district court’s sentencing procedures
is de novo, and our review of the substantive reason-
ableness of a sentence is for an abuse of discretion.
United States v. Are, 590 F.3d 499, 530 (7th Cir. 2009).
Nance’s only complaint about the procedural propriety
of his sentence concerns the district court’s statement
that it was throwing the Guidelines range “out the win-
dow.” The Supreme Court instructs that sentencing
courts must treat the correctly calculated Guidelines
range as “the starting point and the initial benchmark” for
sentencing. Gall v. United States, 552 U.S. 38, 49 (2007). That
much was done here. The district court’s calculation
of Nance’s Guidelines range was correct, and the court
acknowledged that it was “us[ing] the Guidelines as a
No. 09-3786 17
starting point.” It is not enough, however, for a sen-
tencing judge to get his math right; he must also, under
§ 3553(a)(4), “give respectful consideration to the judg-
ment embodied in the guidelines range that he com-
putes.” United States v. Higdon, 531 F.3d 561, 562 (7th Cir.
2008). We do not think that the district court’s one
stray remark suggests it did not adequately consider the
Guidelines range. When read in context, the comment
simply demonstrates that the court was not treating the
Guidelines range as mandatory as United States v. Booker,
543 U.S. 220 (2005), forbids, but rather was making
an individualized assessment: “Frankly, in this case
I throw it out the window because I think that the sentencing
in this case can be uniquely tailored without resorting to
a formulaic reliance on numbers.” (emphasis added). Thus
we see no error on the procedural side of the sentence.
Regarding the substantive reasonableness of the sen-
tence, because the 180-month term imposed fell within
the correctly calculated advisory Guidelines range, we
presume it was reasonable. United States v. Portman, 599
F.3d 633, 636 (7th Cir. 2010). Because Nance has not
rebutted that presumption by demonstrating the sen-
tence was unreasonable in light of the § 3553(a) factors
that the district court thoroughly discussed, we find no
abuse of discretion.
III.
In conclusion, we hold that application note 3 to § 2G2.2
creates an exception to the general rule that relevant
conduct may not be considered when computing a defen-
18 No. 09-3786
dant’s criminal history score. Thus, the district court did
not err in calculating Nance’s criminal history score using
his conviction that had been considered as part of a
pattern of activity involving the sexual exploitation of a
minor under § 2G2.2(b)(5). Nor did the court err in
finding that the non-J.G. materials Nance possessed at
the time he received the J.G. materials were relevant
conduct. And the sentence the court imposed was both
procedurally sound and substantively reasonable.
A FFIRMED.
7-12-10