In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1463
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALLAN JOHNSON,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 02 CR 28—Rudy Lozano, Judge.
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ARGUED MARCH 29, 2005—DECIDED OCTOBER 14, 2005
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Before CUDAHY, WOOD, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Allan Johnson pleaded guilty to
three child pornography charges and now appeals his
sentence, which is significantly longer than the guide-
lines sentencing range because the district court judge
exercised his discretion to depart upward from the then-
applicable range. Johnson challenges only the district
court’s decision on upward departure. After United States
v. Booker, 125 S.Ct. 738 (2005), his appeal requires us to
evaluate the reasonableness of the sentence and also to
determine whether a limited remand pursuant to United
States v. Paladino, 401 F.3d 471 (7th Cir. 2005) is war-
ranted. We conclude that a Paladino remand is unnecessary
2 No. 04-1463
and affirm Johnson’s sentence as reasonable and ade-
quately explained by the district court.
I. Background
Beginning in January 2002, Johnson downloaded child
pornography from the internet and also uploaded images
already in his possession in exchange for what he received.
By the time he was arrested about two months later,
Johnson had acquired an astonishing 10,000 to 12,000
computer images of children engaged in sexually explicit
conduct, though for purposes of sentencing the government
narrowed that number to 4,638 by counting only pictures of
children who appeared to be under age twelve. Some files
depicted children as young as five or six participating in
sexual acts, and among them were 174 images of sadistic
sexual acts and 42 of bestiality involving children. In
addition to the child pornography images, Johnson
also possessed videotapes of children, some depicting chil-
dren engaged in sexually explicit conduct. He made at least
one of these videotapes himself with a hidden camera in his
bathroom, where he videotaped a six- or seven-year-old girl
taking a shower. Johnson ultimately pleaded guilty without
a written agreement to three crimes: possession with intent
to sell images of children engaged in sexually explicit
conduct, in violation of 18 U.S.C. § 2252(a)(3)(B); distribu-
tion of such images, in violation of § 2252(a)(2); and receipt
of such images, also contrary to § 2252(a)(2).
At sentencing, which occurred before our decision in
United States v. Booker, 375 F.3d 508 (7th Cir. 2004), aff’d,
125 S.Ct. 738 (2005), the district court, Judge Rudy Lozano,
adopted without objection the factual statements in the
presentence report. The judge also heard testimony from an
FBI agent and a postal inspector concerning the particu-
larly aggravated content of the child pornography images at
issue in this case, which the judge characterized as the
No. 04-1463 3
most shocking he had seen in sixteen years on the bench.
The images of sadistic sexual acts included images of
children under the age of ten being tied up and forced
to have oral, genital, and anal sex with adult males. The
images of bestiality depicted young children, sometimes
bound, engaging in acts of intercourse and oral sex with
dogs.
The FBI agent, who had four years’ experience investigat-
ing child pornography, testified that only once before had he
encountered images of bestiality involving chil-
dren. Drawing on institutional knowledge, the agent also
testified that he spoke with a customs agent and another
FBI agent—experienced investigators of this sort of
crime—both of whom estimated that less than one per-
cent of child pornography investigations involve bestiality.
The postal inspector, who had specialized for nine years
in crimes involving the exploitation of children, had seen
bestiality before but never involving children under age
twelve. Nor had anyone in his office encountered bestiality
involving such young children.
Judge Lozano also received testimony from the mother of
the child who was videotaped while in the shower. Her
testimony and other evidence established that Johnson’s
live-in girlfriend was a day-care provider, and the child
Johnson videotaped was a neighbor child in his girlfriend’s
care.
Judge Lozano calculated the guidelines sentencing range
as follows: applying the version of U.S.S.G. § 2G2.2 in effect
at the time Johnson committed the offenses, the judge
started with a base offense level of 17. Then, following the
probation officer’s recommendation, the court added two
levels because the child pornography at issue involved
minors under age twelve, § 2G2.2(b)(1); five levels because
Johnson distributed child pornography, § 2G2.2(b)(2)(B);
two levels because Johnson used a computer, § 2G2.2(b)(5);
4 No. 04-1463
and four more because of the sadistic images involving
children, § 2G2.2(b)(3) (renumbered as § 2G2.2(b)(4)
effective November 1, 2004). These adjustments, after a
decrease of three levels for acceptance of responsibility,
§ 3E1.1, yielded an offense level of 27, which, when com-
bined with Johnson’s criminal history category of I, resulted
in a guidelines sentencing range of 70 to 87 months’
imprisonment.
But Judge Lozano nearly tripled the high end of the
guidelines range, calculating a “departure range” of 210 to
262 months and ultimately imposing a total sentence of 236
months’ imprisonment—180 months on each count to be
served consecutively to the extent necessary to arrive at the
total term of 236 months. The judge gave three
basic reasons for imposing this sentence above the guide-
lines range. First, the judge added the equivalent of four
levels to account for Johnson’s possession of 42 images of
children engaged in bestiality. The judge concluded that
bestiality, especially involving children so young, consti-
tuted a substantial aggravating factor not adequately
considered by the Sentencing Commission.
Second, the judge added another five levels (bringing the
effective offense level to 36) to account for the number
of images in Johnson’s possession: 4,638. Judge Lozano
explained that he was taking into consideration a later-
enacted amendment to § 2G2.2 under which Johnson would
have received an equivalent adjustment for possessing 600
or more images. See U.S.S.G. § 2G2.2(b)(7)(D); id. app. C,
amend. 649 (effective Apr. 30, 2003). Since Johnson stood
convicted of possessing more than seven times as many
images, the court reasoned that departing upward by
reference to this amendment was appropriate.
Third, the court concluded that Johnson’s criminal history
category of I did not accurately reflect his past criminal
conduct nor the likelihood that he would commit other
crimes in the future. By his own admission, Johnson
No. 04-1463 5
committed the offense of voyeurism under IND. CODE § 35-
45-4-5 (a Class D felony under Indiana law) by videotap-
ing the child in the shower, even though he was never
charged with that crime. Because this was a crime punish-
able by more than a year and a month in prison, the judge
deemed it appropriate to elevate Johnson’s criminal history
category from I to II. See U.S.S.G. § 4A1.3.
Beyond articulating these three basic grounds for exceed-
ing the guidelines range, Judge Lozano also commented at
length on the additional factors that influenced his sentenc-
ing decision. He repeatedly addressed the particularly
aggravated content of the images at issue in this
case—especially those depicting bestiality—which he
characterized as “vile” and “completely appalling.” He noted
Johnson’s abuse of the baby-sitting situation in connection
with the videotape incident, reasoning that this made
Johnson more likely to commit crimes involving child
pornography again and perhaps to progress to even more
serious sex crimes against children. The judge explained
that he settled on 236 months because he thought a sen-
tence of that length was necessary to send a strong message
of deterrence and permit enough time for Johnson’s rehabil-
itation. The court took into account Johnson’s age and
health, his degree of remorse (which the judge found
lacking), his propensity toward recidivism, and “the Court’s
duty to society.” Judge Lozano emphasized that he “did not
come to this decision lightly, nor was it an easy issue to
decide.” The judge explained: “I have considered all of the
facts in this case, Mr. Johnson, and I have considered what
would be a fair sentence. I have considered very strongly
what, hopefully, would send a message to other individuals
who are thinking about these types of crimes, that this is off
limits. Our children are off limits, and this Court will
protect them at all costs.”
6 No. 04-1463
II. Discussion
On appeal Johnson argues that the district court erred by
making “three departures” based on the images of bestial-
ity, the overall number of images, and the videotape of the
showering child. He also argues that the judge violated his
Sixth Amendment rights by sentencing him under the
formerly mandatory guidelines regime. See Booker, 125
S.Ct. at 756.
Johnson’s framing of the issue as one about “departures”
has been rendered obsolete by our recent decisions applying
Booker. It is now clear that after Booker what is at stake is
the reasonableness of the sentence, not the correctness of
the “departures” as measured against pre-Booker decisions
that cabined the discretion of sentencing courts to depart
from guidelines that were then mandatory. United States v.
Castro-Juarez, No. 05-1195, 2005 WL 2417065, at *3 (7th
Cir. Oct. 3, 2005) (the question . . . is ultimately the reason-
ableness of the sentence the district court imposed, not the
court’s application of a guideline authorizing an upward
depature”). Now, instead of employing the pre-Booker
terminology of departures, we have moved toward charac-
terizing sentences as either fitting within the advisory
guidelines range or not. See United States v. Dean, 414 F.3d
725, 729 (7th Cir. 2005).
Johnson does not dispute the facts used to arrive at
the guidelines range, nor does he argue that the guide-
lines range was improperly calculated. See id. (“The judge
must . . . compute the guidelines sentence, just as he had to
do before Booker.”). A sentence within a properly calculated
guidelines range is presumptively reasonable. United States
v. Bryant, 420 F.3d 652, 658 (7th Cir. 2005); United States
v. Re, 419 F.3d 582, 583 (7th Cir. 2005); United States v.
Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). Sentences
varying from the guidelines range, as this one does, are
reasonable so long as the judge offers appropriate justifica-
No. 04-1463 7
tion under the factors specified in 18 U.S.C. § 3553(a).
Dean, 414 F.3d at 729. How compelling that justification
must be is proportional to the extent of the difference
between the advisory range and the sentence imposed. Id.
Relevant factors may include the defendant’s history, the
nature and seriousness of the crime, just punishment,
deterrence, protection of the public from the defendant’s
future crimes, and the defendant’s correctional needs. 18
U.S.C. § 3553(a); Dean, 414 F.3d at 728. Explicit factfinding
on the factors influencing a decision to exceed the guide-
lines range is not required, except where a particular fact
is contested and “may be decisive to the choice of sentence.”
Dean, 414 F.3d at 730. Johnson does not contest the facts
underlying the court’s decision to move up from the guide-
lines range here.
Once the issue is properly framed in terms of “reasonable-
ness,” we are hard-pressed to say that Johnson’s sentence
does not meet the standard in terms of the bottom line.
Johnson’s sentence is substantially longer than the guide-
lines range as calculated by reference to § 2G2.2 as it
existed when he committed his crimes, but that would not
be true if he engaged in the identical conduct today.
Viewing the current version of § 2G2.2 as one benchmark to
gauge the reasonableness of Johnson’s sentence, cf. United
States v. Coe, 220 F.3d 573, 578 (7th Cir. 2000); United
States v. Porter, 145 F.3d 897, 907 (7th Cir. 1998); United
States v. Willey, 985 F.2d 1342, 1350 (7th Cir. 1993), the
sentence Johnson received would fall within the advisory
guidelines range instead of substantially above it. After
Johnson committed his crimes, § 2G2.2 was twice amended
to reflect the judgment of Congress that trafficking in child
pornography was being punished too lightly. See The
Prosecutorial Remedies and Other Tools to end the Exploi-
tation of Children Today Act of 2003 (PROTECT Act), Pub.
L. No. 108-21, 117 Stat. 650 (Apr. 30, 2003); U.S.S.G. app.
C, amend. 649 (effective Apr. 30, 2003); id. amend. 664
8 No. 04-1463
(effective Nov. 1, 2004). As amended, § 2G2.2 now sets the
base offense level at 22. U.S.S.G. § 2G2.2(a)(2) (2004). Two
levels would be added because children under twelve are
depicted, § 2G2.2(b)(2); another five levels for distribution,
§ 2G2.2(b)(3)(B); four more for sadistic or masochistic
images, § 2G2.2(b)(4); two for using a computer,
§ 2G2.2(b)(6); and, finally, five more levels because there
were more than 600 images. See U.S.S.G § 2G2.2(b)(7)(D)
(2004). Even dropping three levels for acceptance of respon-
sibility, the resulting total offense level of 37 coupled with
a criminal history category of I would yield a range of 210
to 262 months. The comparison is irresistible: if handed
down today, Johnson’s 236-month sentence would be right
in the middle of the advisory range and thus presumptively
reasonable. See Bryant, 420 F.3d at 658; Re, 419 F.3d at
583; Mykytiuk, 415 F.3d at 608.
That aside, focusing exclusively on the reasons the
district court gave for imposing the 236-month term of
imprisonment, we are persuaded that a sentence of this
length was amply justified. First, the court reasoned that
Johnson’s case is particularly egregious because he pos-
sessed 42 shocking images of children engaged in bestiality.
Johnson objects to this rationale, arguing that the court had
already accounted for the images of bestiality by applying
the upward adjustment under § 2G2.2(b)(3) (now subsection
(b)(4)), for child pornography depicting “sadistic or masoch-
istic conduct or other depictions of violence.” Johnson
contends that images involving both kinds of
conduct—sadism and bestiality—are covered by the adjust-
ment. He notes that sadism in this context requires neither
violence nor the infliction of physical pain but simply the
infliction of severe and degrading harm on the child. See
United States v. Turchen, 187 F.3d 735, 739-40 (7th Cir.
1999) (defining sadism to include conduct that inflicts
emotional as well as physical pain). Conceding that the
images of bestiality in his possession involved harm
No. 04-1463 9
degrading and severe enough to be considered sadistic,
Johnson argues from this concession that it was improper
for the district court to further increase his sentence
based upon the depictions of bestiality when it had already
done so because they satisfied the definition of sadism.
We need not attempt to draw a clear distinction between
the two kinds of conduct here. Even if § 2G2.2(b)(4) is
construed to include images of bestiality, there is no reason
why the court, in deciding whether to impose a sentence
above the advisory range, could not give further weight to
a factor covered by a specific guidelines adjustment,
especially where (as is true here) that “factor is present to
an exceptional degree or in some other way makes the case
different from the ordinary case where the factor is pres-
ent.” Koon v. United States, 518 U.S. 81, 96 (1996). In some
instances child pornography fitting the general category
covered by § 2G2.2(b)(4) is so aggravating as to justify going
above the advisory range. See United States v. Griffith, 344
F.3d 714, 718-20 (7th Cir. 2003) (explaining that the
particularly horrific nature of defendant’s images justified
a sentence above guidelines range). That was the judge’s
reasoning here, and we cannot disagree with it.
Attacking the court’s second reason for increasing the
sentence—the number of images in his possession—
Johnson concedes that the district court correctly de-
cided that possessing so many illicit pictures warranted
a longer sentence, but insists that the district court in-
creased his sentence by too much. We are not persuaded.
Astonished by Johnson’s accumulation of thousands of
images in just a few months, the judge explained that
Johnson’s rapid, deep fall into child pornography was
“almost beyond belief, and certainly far from typical.” Judge
Lozano looked to a subsequent amendment—now
§ 2G2.2(b)(7)(D), for cases involving 600 or more images—to
guide his discretion in increasing the sentence. See U.S.S.G.
app. C, amend. 649 (effective Apr. 30, 2003). Using a later-
10 No. 04-1463
enacted guidelines amendment as a tool to guide sentencing
discretion is appropriate. Coe, 220 F.3d at 578; Porter, 145
F.3d at 907.
The district court’s third reason for increasing the
sentence was Johnson’s videotaping of the little girl in the
shower. Johnson argues that the district court had no
authority to increase his sentence based on this reason. We
disagree. Johnson admitted during the plea colloquy that he
secretly videotaped the child, and he concedes
that this conduct could have been prosecuted under Indiana
law as voyeurism, see IND. CODE § 35-45-4-5 (voyeurism),
which at the time of the offense carried a presumptive
penalty of 18 months in prison, see id. § 35-50-2-7(a); Dixon
v. State, 825 N.E.2d 1269, 1271-72 (Ind. Ct. App. 2005).
Even under the old sentencing regime, U.S.S.G. § 4A1.3
permitted district courts to impose a higher sentence after
considering, among other things, all “prior similar adult
criminal conduct not resulting in a criminal conviction,”
U.S.S.G. § 4A1.3(e) (redesignated § 4A1.3(a) (2)(E)); United
States v. Terry, 930 F.2d 542, 545 (7th Cir. 1991). Moreover,
the district court explained that Johnson’s abuse of the
baby-sitting situation increased the likelihood that Johnson
would reoffend and perhaps escalate to even more serious
sexual abuse of children. This assessment was entirely
reasonable.
Accordingly, although Johnson’s sentence is much longer
than the guidelines range applicable at the time of sentenc-
ing, the district court’s justification is commensurate to the
difference between the sentence imposed and the advisory
range. The judge’s conclusions regarding the particular
nature of the pornographic images, the sheer quantity of
child pornography, and Johnson’s risk of recidivism were
appropriately related to the factors specified in §3553(a).
See Dean, 414 F.3d at 728. The district court’s stated
justification adequately supports the sentence imposed. Id.
at 729.
No. 04-1463 11
As a fallback position, Johnson argues for the first time
on appeal that imposing this sentence under the formerly
mandatory regime is error that requires resentencing. See
Booker, 125 S.Ct. at 756. Although it was error to apply the
guidelines as mandatory, see id.; United States v.
Cunningham, 405 F.3d 497, 504-05 (7th Cir. 2005), Johnson
failed to preserve the error by raising a constitutional
objection below, see Paladino, 401 F.3d at 481-84. Accord-
ingly, our review is for plain error. Under the plain error
standard, we will order resentencing only if applying the
guidelines as mandatory worked to the defendant’s disad-
vantage, that is, if the sentencing court would have imposed
a lower sentence had it realized that the guidelines were
advisory. Id. at 482-83. If we are in doubt about whether
the district court would have done so, we will remand for
the limited purpose of asking. Id. at 483-84. But only if we
are in doubt. United States v. Lee, 399 F.3d 864, 866 (7th
Cir. 2005). In Lee we observed that when a sentencing judge
departs upward from what was believed to be a mandatory
guidelines range, it is unlikely the judge would have
lowered the sentence had he known that after Booker he
would have even more freedom to fashion an appropriate
sentence. Id. at 867; see also United States v. Stewart, 411
F.3d 825, 829 (7th Cir. 2005); Cunningham, 405 F.3d at
504-05; Lee, 399 F.3d at 866. Of course, there are excep-
tions; we have also stated that “Lee did not . . . establish a
per se rule that plain error is impossible if the district court
departed upwards.” United States v. Long, No. 04-1721,
2005 WL 2465006, at *5 (7th Cir. Oct. 7, 2005). Here, Judge
Lozano explained his decision so thoroughly that we are
confident he would not lower the sentence in this case. A
limited remand under Paladino is not necessary. See Lee,
399 F.3d at 866-67.
Because the sentence imposed was reasonable and we see
no reason for a Paladino remand, the judgment of the
district court is AFFIRMED.
12 No. 04-1463
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-14-05