In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3088
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D AVID M. L ARSEN,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 04 CR 29—Rudolph T. Randa, Judge.
A RGUED M AY 5, 2009—D ECIDED A UGUST 4, 2010
Before R IPPLE and S YKES, Circuit Judges, and L AWRENCE,
District Judge.1
S YKES, Circuit Judge. David Larsen brutally beat Teri
Jendusa-Nicolai, his ex-wife, at his home in Wisconsin.
He then bound her with duct tape, stuffed her in a
1
The Honorable William T. Lawrence of the United States
District Court for the Southern District of Indiana, sitting
by designation.
2 No. 08-3088
garbage can filled with snow, put the can in the back of
his truck, and drove to a self-storage facility in Illinois.
He left her there—still bound and in the snow-filled
garbage can—in an unheated rented storage locker. She
was discovered the next day, about an hour from death.
Larsen was charged with state and federal crimes;
the state charges were resolved first. See State of Wiscon-
sin v. Larsen, 2007 WI App 147, 302 Wis. 2d 718, 736
N.W.2d 211. Thereafter in federal court, Larsen waived
his right to a jury and after a trial to the court was con-
victed of two counts: kidnapping in violation of 18 U.S.C.
§ 1201(a)(1), and interstate domestic violence in viola-
tion of 18 U.S.C. § 2261(a)(2) and (b)(2) (the Interstate
Domestic Violence Act). The district judge sentenced
him to life in prison, which exceeded the recommended
sentencing-guidelines range.
Larsen challenges both his convictions and his sen-
tence. His first claim on appeal is a Commerce Clause
challenge to the Interstate Domestic Violence Act; he
contends that the Act unconstitutionally federalizes
purely local violent crime with an insufficient nexus to
interstate commerce. He next argues that his convic-
tions for kidnapping and interstate domestic violence
are multiplicitous in violation of the Double Jeopardy
Clause. He also maintains that a warrantless search of
his home on the afternoon of the victim’s disappearance
was unjustified under the emergency doctrine and there-
fore unreasonable in violation of the Fourth Amend-
ment. Finally, he challenges his life sentence to the
extent that the judge’s decision to impose it was based
No. 08-3088 3
on Jendusa-Nicolai’s having suffered a miscarriage three
days after the attack.
We reject these arguments and affirm. The Interstate
Domestic Violence Act punishes those who use “force,
coercion, duress, or fraud” to cause a domestic partner
to travel in interstate commerce and who commit a
violent crime against the victim “in the course of, as a
result of, or to facilitate” that interstate travel. 18 U.S.C.
§ 2261(a)(2). This statute lies well within the scope
of Congress’s power to regulate the channels or instru-
mentalities of, or persons in, interstate commerce. We
further conclude that Larsen’s convictions are not
multiplicitous; the crimes of kidnapping and interstate
domestic violence contain different elements, and each
requires proof of a fact that the other does not. The
district court’s admission of physical evidence obtained
during the warrantless search of Larsen’s home was
ultimately harmless, even if it was error; the evidence
of Larsen’s guilt was overwhelming and uncontroverted.
Finally, Larsen’s life sentence was not unreasonable,
either on its own terms or because the judge’s decision
to impose it was based primarily on Jendusa-Nicolai’s
miscarriage.
I. Background
On January 31, 2004, David Larsen brutally attacked
Teri Jendusa-Nicolai, his ex-wife, when she came to his
home in Racine County, Wisconsin, to pick up their
two young daughters. The couple had divorced three
years earlier after an abusive marriage, and Jendusa-
4 No. 08-3088
Nicolai had recently taken Larsen to court for nonpay-
ment of child support. Larsen lured her into his home
and began to beat her with a baseball bat, strangle, and
smother her. When she did not succumb, he bound her
head, ankles, and wrists with duct tape and placed her
in a garbage can filled with snow. He then put the
garbage can, with Jendusa-Nicolai inside, in the back of
his pick-up truck and drove to a self-storage facility in
Illinois where he had a rented storage locker. He left
her there to die, in a cold storage locker, in the snow-
filled garbage can with boxes wedged around it to
prevent her from climbing out.
During the drive to Illinois, Jendusa-Nicolai managed
to free her hands and call 911 from her cell phone. She
gave Larsen’s home address, and local law enforcement
and rescue personnel broke into Larsen’s home around
11 a.m. in an attempt to find Jendusa-Nicolai. They re-
mained inside for about 15 minutes—just long enough
to ascertain that she was not there. Jendusa-Nicolai
was able to make two more calls from her cell phone:
She called her husband at noon and called 911 a second
time around 2 p.m. At one point along the route to
Illinois, she tried to extend her hand outside the gar-
bage can in an effort to attract the attention of passing
motorists. Larsen saw this, hit her again, and confiscated
her cell phone.
From the second and third phone calls, the police
learned that Jendusa-Nicolai was bound and in the back
of Larsen’s truck. They also learned that Jendusa-
Nicolai’s two daughters were missing. At about 3:30 p.m.,
No. 08-3088 5
law-enforcement officers and a rescue team reentered
Larsen’s home after the Racine County District Attorney
concluded that exigent circumstances existed for a
warrantless search. The police searched the house thor-
oughly for six hours looking for the two missing
children as well as clues about Jendusa-Nicolai’s where-
abouts. They went through papers, played back voice-
mail messages, and searched through Larsen’s computer
files. During this search, they observed a large quantity
of blood in the front hall, as well as an overturned chair,
a blood-stained bucket, sweatpants with duct tape
around the ankles, and blood-stained gloves and socks.
In the meantime other officers prepared a search-
warrant application.
Police arrested Larsen around 6 p.m. that evening
when he reported for work. He told investigators that
his daughters were at his girlfriend’s house but claimed
he did not know anything about Jendusa-Nicolai’s disap-
pearance. Police recovered the two girls at about 9:45 p.m.
and suspended the search of Larsen’s home without
any further information about Jendusa-Nicolai’s location.
The search warrant was issued at about 11 p.m.
The next morning, the police searched Larsen’s wallet
and found two business cards for a storage facility in
Illinois. Police called the storage facility, and an em-
ployee checked Larsen’s unit and heard moaning inside.
Local police immediately responded and recovered
Jendusa-Nicolai from inside the garbage can. Doctors
later said she was about an hour from death: Her body
temperature had dropped to 84 degrees, renal failure
6 No. 08-3088
had begun, and she was frostbitten about her body. She
was hospitalized and suffered a miscarriage two days
later while still at the hospital; she estimated that she
had been pregnant for about five weeks. All her toes had
to be amputated due to frostbite, and her hearing was
damaged because of the blows to her head.
Larsen was charged in state court with attempted first-
degree intentional homicide and two counts of interfer-
ence with child custody. See Larsen, 2007 WI App 147, ¶ 1.
A federal grand jury indicted Larsen on two counts:
kidnapping, see 18 U.S.C. § 1201(a)(1), and forcibly
causing a former spouse to travel in interstate com-
merce while committing a crime of violence in the
course of and to facilitate the travel, see id. § 2261(a)(2),
(b)(2) (the Interstate Domestic Violence Act). Larsen
moved to suppress the evidence recovered in the
warrantless search of his home, but the district court
denied the motion. Larsen pleaded no contest to the
state charges, see Larsen, 2007 WI App 147, ¶ 13, and after
sentencing he returned to federal court and opted for
a bench trial. The case was tried to the court, and at the
close of the evidence, Larsen moved to dismiss on two
constitutional grounds. He argued first that the Inter-
state Domestic Violence Act exceeded Congress’s legisla-
tive power under the Commerce Clause, and second,
that the kidnapping and interstate domestic violence
charges were multiplicitious in violation of the Double
Jeopardy Clause. The district court rejected these argu-
ments and convicted him on both counts.
The sentencing guidelines suggested a sentence of 292
to 365 months, but the judge sentenced Larsen to life
No. 08-3088 7
imprisonment on the kidnapping charge and a concur-
rent term of ten years (the statutory maximum) on the
interstate domestic-violence charge. In imposing this
above-guidelines sentence, the judge emphasized that
Jendusa-Nicolai’s miscarriage just days after the assault
was a severe aggravating factor that the guidelines had
not taken into consideration.
II. Discussion
A. Commerce Clause Challenge to the Interstate Domes-
tic Violence Act
Larsen first argues that the Interstate Domestic Violence
Act is unconstitutional because it exceeds Congress’s
legislative power under the Commerce Clause. Specifi-
cally, he claims that the Act impermissibly regulates
purely local, noneconomic conduct that does not have
a substantial effect on interstate commerce. The rele-
vant portion of the Act provides as follows:
A person who causes a spouse, intimate partner, or
dating partner to travel in interstate or foreign com-
merce . . . by force, coercion, duress, or fraud, and who,
in the course of, as a result of, or to facilitate such
conduct or travel, commits or attempts to commit a
crime of violence against that spouse, intimate partner,
or dating partner, shall be punished . . . .
18 U.S.C. § 2261(a)(2). We conclude, in line with four
other circuits, that the Interstate Domestic Violence Act
is a proper exercise of Congress’s Commerce Clause
power. See United States v. Lankford, 196 F.3d 563 (5th Cir.
8 No. 08-3088
1999); United States v. Page, 167 F.3d 325 (6th Cir. 1999);
United States v. Gluzman, 953 F. Supp. 84 (S.D.N.Y. 1997),
aff’d, 154 F.3d 49 (2d Cir. 1998); United States v. Bailey,
112 F.3d 758 (4th Cir. 1997).
The Supreme Court’s “modern Commerce Clause
jurisprudence has ‘identified three broad categories
of activity that Congress may regulate under its com-
merce power.’ ” United States v. Morrison, 529 U.S. 598, 608
(2000) (quoting United States v. Lopez, 514 U.S. 549, 558
(1995)). The Court has held that the Commerce Clause
authorizes Congress to regulate the “use of the channels
of interstate commerce”; the “instrumentalities of inter-
state commerce, or persons or things in interstate com-
merce, even though the threat may come only from intra-
state activities”; and “those [intrastate] activities that
substantially affect interstate commerce.” Lopez, 514 U.S.
at 558-59; see also Morrison, 529 U.S. at 608-09; Perez v.
United States, 402 U.S. 146, 150 (1971). Congress’s legisla-
tive authority in the first and second categories is ple-
nary. Cleveland v. United States, 329 U.S. 14, 19 (1946)
(“The power of Congress over the instrumentalities of
interstate commerce is plenary . . . .”); Caminetti v. United
States, 242 U.S. 470, 491 (1917) (“[T]he authority of Con-
gress to keep the channels of interstate commerce free
from immoral and injurious uses has been frequently
sustained, and is no longer open to question.”). Congres-
sional power in the third category, however, extends
only to economic activity that substantially affects inter-
state commerce. Morrison, 529 U.S. at 611 (“Lopez’s
review of Commerce Clause case law demonstrates that
in those cases where we have sustained federal regula-
No. 08-3088 9
tion of intrastate activity based upon the activity’s sub-
stantial effects on interstate commerce, the activity in
question has been some sort of economic endeavor.”).
Larsen conceptually locates his argument in the third
Commerce Clause category. The Act is unconstitutional,
he contends, because Congress lacks the authority to
punish domestic violence, which is wholly intrastate
conduct, noneconomic in nature, and does not substan-
tially affect interstate commerce. This argument is mis-
placed. The Interstate Domestic Violence Act regulates
the channels or instrumentalities of interstate com-
merce and persons in interstate commerce—not purely
intrastate activity—and therefore falls within Lopez’s
first and second categories, in which Congress has
plenary authority to legislate. The Act punishes only
those who cause a spouse or intimate partner to “travel
in interstate or foreign commerce” and who commit
a crime of violence “in the course of, as a result of, or to
facilitate” that interstate travel. It is the victim’s move-
ment in interstate commerce—not the intrastate crime
of violence—that implicates the Interstate Domestic
Violence Act.
The Supreme Court has long held that movement of
persons across state lines is sufficient to permit congres-
sional regulation under the Commerce Clause. See Camps
Newfound/Owatonna, Inc. v. Town of Harrison, Me., 520
U.S. 564, 573 (1997) (reaffirming that the movement of
persons across state lines is a form of commerce); Heart
of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256
(1964) (holding that the act of crossing state lines need
10 No. 08-3088
not be commercial in character); Caminetti, 242 U.S. at 491.
In Cleveland the Supreme Court upheld the Mann Act
against a challenge by polygamists who transported
their wives across state lines. 329 U.S. 14. The de-
fendants had argued that the Mann Act unconstitu-
tionally regulated marriage, a purely intrastate matter.
The Court rejected this argument: “The power of
Congress over the instrumentalities of interstate com-
merce is plenary; it may be used to defeat what are
deemed to be immoral practices; and the fact that the
means used may have ‘the quality of police regulations’
is not consequential.” Id. at 19 (quoting Hoke v. United
States, 227 U.S. 308, 323 (1913)). And in Caminetti the
Court upheld the White Slave Act of 1910, which pro-
hibited the transportation of women in interstate com-
merce for purposes of debauchery or prostitution. 242
U.S. at 491. The Court held:
The transportation of passengers in interstate com-
merce, it has long been settled, is within the regula-
tory power of Congress, under the commerce clause
of the Constitution, and the authority of Congress to
keep the channels of interstate commerce free from
immoral and injurious uses has been frequently sus-
tained, and is no longer open to question.
Id.
Larsen relies heavily on Morrison, but that pivotal
case hurts rather than helps his argument. Morrison
invalidated, on Commerce Clause grounds, a provision
in the Violence Against Women Act that provided a
civil remedy to victims of gender-related violence. The
No. 08-3088 11
Supreme Court analyzed the provision under Lopez’s
third category—as a regulation of wholly intrastate
activity—“[g]iven [its] focus on gender-motivated
violence wherever it occurs (rather than violence
directed at the instrumentalities of interstate commerce,
interstate markets, or things or persons in interstate
commerce) . . . .” Morrison, 529 U.S. at 609. The Court
noted in particular that the statute lacked any juris-
dictional element that would “lend support” to the argu-
ment that the provision was sufficiently tied to inter-
state commerce. Id. at 613.
There is nothing in Morrison that limits Congress’s
authority to regulate the use of the channels or instru-
mentalities of, or persons in, interstate commerce. See,
e.g., Cleveland, 329 U.S. at 16. To the contrary, the
Court specifically distinguished the civil remedy in the
Violence Against Women Act, which regulated wholly
intrastate conduct, from § 2261(a)(1), the criminal-
penalty provision at issue here. The Court took note of
the “interstate travel” element of the criminal offense
and the difference that the presence of this element made
in the Commerce Clause analysis: “The Courts of
Appeals have uniformly upheld th[e] criminal sanction
[§ 2261(a)(1)] as an appropriate exercise of Congress’
Commerce Clause authority, reasoning that ‘[t]he provi-
sion properly falls within the first of Lopez’s categories
as it regulates the use of channels of interstate com-
merce.’ ” Morrison, 529 U.S. at 613 n.5 (quoting Lankford,
196 F.3d at 571-72) (alteration in Morrison).
This language, of course, cannot be taken as an ex-
plicit endorsement of the conclusion that § 2261(a)(1) sur-
12 No. 08-3088
vives Commerce Clause challenge as a regulation of the
channels or instrumentalities of, or persons in, interstate
commerce; Morrison addressed only the civil-remedy
provision in the Violence Against Women Act. But
the Court’s language undermines Larsen’s position that
§ 2261(a)(1) regulates purely intrastate activity and
must be analyzed as such under Lopez and Morrison. Ac-
cordingly, we join the Second, Fourth, Fifth, and Sixth
Circuits in holding that the Interstate Domestic Violence
Act is a valid exercise of Congress’s power under the
Commerce Clause to regulate the channels or instru-
mentalities of, or persons in, interstate commerce. See
Lankford, 196 F.3d at 572; Page, 167 F.3d at 335; Gluzman,
953 F. Supp. 84; Bailey, 112 F.3d at 766.
B. Double Jeopardy
Larsen next asserts that his convictions for both kid-
napping and interstate domestic violence are multiplicit-
ous in violation of the Double Jeopardy Clause. Kidnap-
ping, he argues, is a lesser-included offense of a violation
of the Interstate Domestic Violence Act, and so to punish
him for both crimes is to punish him twice for the same
offense. See Illinois v. Vitale, 447 U.S. 410, 415 (1980).
The Fifth Amendment’s Double Jeopardy Clause pro-
vides that no person shall “be subject for the same
offense to be twice put in jeopardy of life or limb.” U.S.
C ONST. amend. V; Witte v. United States, 515 U.S. 389, 395-
96 (1995). The double-jeopardy principle implicated here
is that a court may not impose cumulative punishments
No. 08-3088 13
for the same act unless the legislature intends it. See
Missouri v. Hunter, 459 U.S. 359, 366 (1983) (“With respect
to cumulative sentences imposed in a single trial, the
Double Jeopardy Clause . . . prevent[s] the sentencing
court from prescribing greater punishment than the
legislature intended.”); see also United States v. Peel, 595
F.3d 763, 765-66 (7th Cir. 2010). Accordingly, a person
may not be convicted and punished for two separate
offenses arising out of the same act unless “each [offense]
requires proof of a fact which the other does not.”
Blockburger v. United States, 284 U.S. 299, 304 (1932). The
familiar Blockburger test focuses on the statutory
elements of the separate offenses.
To obtain a kidnapping conviction, the government
must prove that the defendant (1) seized the victim;
(2) held the victim “for ransom or reward or otherwise”;
and (3) transported the victim in interstate commerce.
18 U.S.C. § 1201(a)-(a)(1); United States v. Sandoval, 347
F.3d 627, 633 (7th Cir. 2003). The Interstate Domestic
Violence Act, on the other hand, requires that (1) the
defendant is a spouse, intimate partner, or dating partner
of the victim; (2) the defendant caused the victim to
travel in interstate commerce by force, coercion, duress,
or fraud; and (3) the defendant committed a crime of
violence against the victim in the course of, as a result of,
or to facilitate the interstate travel. 18 U.S.C. § 2261(a)(2).
Larsen acknowledges that the Interstate Domestic
Violence Act requires proof of facts that the kidnapping
statute does not: The defendant and the victim must be
spouses, intimate partners, or dating partners, and the
14 No. 08-3088
defendant must commit a crime of violence against the
victim. He contends, however, that the converse is not
true; he maintains that kidnapping has no element not
also required by the Interstate Domestic Violence Act.
Stated differently, Larsen’s argument is that the crime
of interstate domestic violence encompasses the crime
of kidnapping.
We disagree. The kidnapping statute requires that the
defendant “hold[ ] [the victim] for ransom or reward or
otherwise.” 2 This “holding” requirement is an essential
element of kidnapping and must be established in
every case. See 3 W AYNE R. L AF AVE, S UBSTANTIVE
C RIMINAL L AW § 18.2 (2d ed. 2009); Sandoval, 347 F.3d
at 633. Furthermore, the Supreme Court has said
that the “holding” requirement “necessarily implies an
unlawful physical or mental restraint for an appreciable
period.” Chatwin v. United States, 326 U.S. 455, 460 (1946).
The Interstate Domestic Violence Act, on the other
hand, does not require that the defendant hold the vic-
tim. Rather, the defendant must cause the victim to
travel in interstate commerce “by force, coercion,
duress, or fraud,” and commit a crime of violence
against the victim “in the course of, as a result of, or to
facilitate” the interstate travel.
2
“Whoever unlawfully seizes, confines, inveigles, decoys,
kidnaps, abducts, or carries away and holds for ransom
or reward or otherwise any person . . . when the person is
willfully transported in interstate or foreign commerce . . .
shall be punished by imprisonment for any term of years or for
life . . . .” 18 U.S.C. § 1201(a).
No. 08-3088 15
Thus, if a defendant (for example) induces his spouse
to travel across state lines by coercion or false pretenses
and then commits a crime of violence against her when
she arrives, he would be guilty of interstate domestic
violence but not kidnapping because the “holding” ele-
ment of kidnapping would be missing. Indeed, three
circuits have held that the element of holding distin-
guishes kidnapping from a violation of the Interstate
Domestic Violence Act for double-jeopardy purposes. See
Lankford, 196 F.3d at 578; United States v. Sickinger,
179 F.3d 1091, 1093 (8th Cir. 1999); Bailey, 112 F.3d at
767. We see no reason to disagree with this conclusion.
Larsen suggests that even if the two crimes require
proof of different elements in theory, in this case the
same facts proved both the interstate travel element of
interstate domestic violence and the “holding” element of
kidnapping. That is, Larsen argues that the govern-
ment could not prove a violation of the Interstate
Domestic Violence Act in this case without also proving
that the defendant “held” the victim for purposes of the
kidnapping statute. Larsen’s argument essentially reiter-
ates the Supreme Court’s holding in Grady v. Corbin, 495
U.S. 508 (1990), which was overruled as “wrong in princi-
ple [and] . . . unstable in application” by United States v.
Dixon, 509 U.S. 688, 709 (1993). In multiplicity challenges
the elements of each offense—not the specific offense
conduct—determine whether two offenses are the same
for purposes of double jeopardy. See Rutledge v. United
States, 517 U.S. 292, 298 (1996) (“The Blockburger test
requires us to consider whether . . . the § 846 conspiracy
offense requires proof of any element that is not a part
16 No. 08-3088
of the CCE offense.” (emphasis added)). We reiterated
this point in United States v. Hatchett:
Dixon informs us that in deciding whether two
offenses are the same or not, our inquiry must focus
on the elements of each of the charged offenses
rather than the underlying conduct. Dixon re-estab-
lished the “same elements” test articulated by
Blockburger as the one and only test that courts are to
apply in considering whether a defendant may be . . .
punished twice based on a single act or transaction.
245 F.3d 625, 631 (7th Cir. 2001).
Accordingly, it makes no difference that the same
evidence established that Larsen forcibly caused Jendusa-
Nicolai to travel in interstate commerce and also that
he “held” her as required for conviction of kidnapping.
Each of these offenses requires proof of an element
that the other does not, and that defeats Larsen’s multi-
plicity argument. His convictions do not violate double
jeopardy.
C. The Warrantless Search
Larsen argues that the warrantless search of his home
on the afternoon of Jendusa-Nicolai’s disappearance
was unjustified by the emergency doctrine and therefore
violated the Fourth Amendment. During this six-hour
search, the police discovered a large quantity of blood
on the carpet, an overturned chair, and bloody items of
clothing. The district court denied Larsen’s motion to
suppress this evidence, relying on the exigencies of an
No. 08-3088 17
ongoing missing-persons investigation. See, e.g., United
States v. Bell, 500 F.3d 609, 613 (7th Cir. 2007). Larsen
maintains that the emergency (or “exigent circum-
stances”) doctrine does not apply because the police knew
before they reentered the home that neither Jendusa-
Nicolai nor her children were there and they had
plenty of time to get a warrant between the first search
at 11:30 a.m. and the second at 3:30 p.m.
We need not decide the merits of the Fourth Amend-
ment question because any error in admitting the evi-
dence was harmless.3 See United States v. Pavelski, 789
F.2d 485, 490 (7th Cir. 1986) (the admission of tainted
evidence is harmless if it is clear beyond a reasonable
doubt that the verdict would stand without it). The case
against Larsen was ironclad. The government presented
Jendusa-Nicolai’s graphic testimony about how Larsen
attacked and kidnapped her; played the tape from the
two 911 calls from Jendusa-Nicolai in which she
gave Larsen’s address and told police she was bound
in the back of his truck; and introduced the physical
evidence from Larsen’s storage locker where Jendusa-
Nicolai was found. Indeed, Larsen’s written closing
argument admitted the facts that had been adduced
3
We note, however, the similarities between this case and
our decision in United States v. Bell, 500 F.3d 609, 613 (7th Cir.
2007). We also note that the Wisconsin Court of Appeals
has upheld this search as reasonable under the Fourth Amend-
ment because the exigent circumstances “did not dissipate
until Jendusa-Nicolai and her two children were located.”
Larsen, 2007 WI App 147, ¶ 30.
18 No. 08-3088
during the bench trial and instead pressed the two con-
stitutional arguments he has reiterated here. Under
these circumstances, the evidence of the blood-stained
carpet and clothing was entirely cumulative. The evi-
dence of Larsen’s guilt was abundant and conceded,
and Larsen’s theory of the case was essentially confined
to the Commerce Clause and multiplicity challenges.
Any error in admitting the physical evidence obtained
in the warrantless search of Larsen’s home was harmless.
D. Larsen’s Life Sentence
Finally, Larsen contends that his sentence is both proce-
durally and substantively unreasonable. The district
judge sentenced Larsen to life imprisonment on the
kidnapping charge—two levels higher than the top of
his suggested guidelines range—in large part because
Jendusa-Nicolai suffered a miscarriage three days after
Larsen assaulted and abducted her. Larsen argues first
that the evidence was insufficient for the judge to find
either that Jendusa-Nicolai was pregnant or that Larsen’s
conduct caused the miscarriage. He also maintains that
the life sentence is substantively unreasonable.
We review sentences for procedural error to ensure
that the sentencing judge did not “select[] a sentence
based on clearly erroneous facts.” United States v. Jackson,
547 F.3d 786, 792 (7th Cir. 2008). Here, Larsen waived
any factual challenge to the evidence that Jendusa-
Nicolai suffered a miscarriage. At sentencing Larsen’s
counsel explicitly acknowledged that a complete under-
standing of the consequences of Larsen’s crimes
No. 08-3088 19
included Jendusa-Nicolai’s miscarriage: “It’s about a
physical, brutal assault, and an effort to kill someone. It’s
about the death of a five week old fetus. Not there in
the storage locker . . . but days later in the hospital,
as the presentence report correctly reports. A miscarriage
on Wednesday, following the assault on Saturday.” (Em-
phasis added.) Aside from the waiver, however,
both Jendusa-Nicolai and her husband testified to the
pregnancy and her miscarriage, and the district judge
was entitled to credit their testimony. Finally, it
was not clearly erroneous for the judge to conclude that
the miscarriage was attributable to Larsen’s conduct. It
was reasonable for the judge to infer that the severe
beating and hours of exposure to the cold caused Jendusa-
Nicolai to miscarry—particularly in light of the fact that
her doctors estimated that Jendusa-Nicolai was just an
hour from death when rescuers found her in Larsen’s
self-storage locker.
We also conclude that the above-guidelines sentence
of life in prison was not an abuse of discretion. The sen-
tence is substantively reasonable given the cold-blooded
brutality of Larsen’s crimes and the extreme pain and
anguish he inflicted—on Jendusa-Nicolai primarily, and
on her family as secondary victims. It was entirely fair
for the judge to consider the miscarriage as a signifi-
cant aggravator. The judge took note of the mitigating
factors the defense presented at sentencing: Larsen had
no prior criminal history, a steady job, and was active in
his church. That the judge gave this mitigation little
weight is hardly surprising in light of the obvious
20 No. 08-3088
severity of these crimes and in any event is not for us to
second-guess.
A FFIRMED.
8-4-10