In the
United States Court of Appeals
For the Seventh Circuit
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Nos. 15-2432 & 15-2447
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN D. GRIES and
JAMES MCCULLARS,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
Nos. 1:11CR00191-010, -011 — Sarah Evans Barker, Judge.
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ARGUED SEPTEMBER 23, 2016 — DECIDED SEPTEMBER 20, 2017
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Before RIPPLE, ROVNER, and SYKES, Circuit Judges.
SYKES, Circuit Judge. For nearly a decade, John Gries and
James McCullars were active participants in a private online
chat room frequented by pedophiles sharing large volumes
of child pornography. They were indicted for conspiracy to
distribute child pornography, conspiracy to sexually exploit
a child, and engaging in a child-exploitation enterprise.
Other users of the chat room cooperated with investigators,
2 Nos. 15-2432 & 15-2447
pleaded guilty, and received sentencing consideration. The
charges against Gries and McCullars proceeded to trial;
several cooperators testified against them.
To convict Gries and McCullars of the enterprise offense,
the government had to prove that they committed three or
more crimes against children “in concert” with three or more
persons. 18 U.S.C. § 2252A(g)(2). The jury found them guilty
on all charges.
At sentencing the parties and the judge overlooked an
important point: The conspiracy counts are lesser-included
offenses of the enterprise count. Instead of merging those
convictions with the enterprise conviction and imposing
sentence on the greater offense alone, the judge imposed
concurrent sentences on all three convictions. That error
violates the Double Jeopardy Clause. Rutledge v. United
States, 517 U.S. 292, 307 (1996). We reverse and remand with
instructions to vacate the sentences on the conspiracy counts
and enter new judgments accordingly. The remaining issues
on appeal are meritless or need not be addressed.
I. Background
For almost ten years, Gries and McCullars participated in
an online conspiracy of pedophiles who shared large collec-
tions of child pornography and discussed the sexual exploi-
tation of children. The group used password-protected chat
rooms to privately communicate in real time and facilitate
the exchange of massive personal libraries of child pornog-
raphy. Collectively, the libraries contained thousands of files
containing images depicting the violent sexual abuse of
thousands of children. The files were encrypted, but mem-
bers of the group shared passwords to give chat-room
Nos. 15-2432 & 15-2447 3
participants access to the contents. When a group member
had new material to share, he would message others in the
chat room, describe the contents of the file, and offer it for
distribution.
Investigators estimated that at its peak the conspiracy in-
cluded as many as 35 to 40 participants, but the government
could identify only Gries, McCullars, and 11 other cocon-
spirators. Most cooperated with investigators by handing
over and decrypting their child-pornography collections.
Gries also did so, but McCullars did not. Nine coconspira-
tors pleaded guilty to a single count of engaging in a child-
exploitation enterprise in violation of § 2252A(g)(2); they are
serving prison terms ranging from 135 to 360 months.
A grand jury indicted Gries and McCullars on three
counts: conspiracy to distribute and receive child pornogra-
phy, 18 U.S.C. § 2252A(a)(2); conspiracy to sexually exploit a
child, 18 U.S.C. § 2251(d)(1)(A); and engaging in a child-
exploitation enterprise, § 2252A(g)(2). Gries was also
charged separately with five additional counts of receiving
child pornography. Three of their coconspirators agreed to
testify for the government in exchange for favorable sentenc-
ing recommendations.
The charges against Gries and McCullars were tried to a
jury over the course of a week. To convict them on the
enterprise charge, the government had to prove beyond a
reasonable doubt that each defendant committed at least
three predicate crimes against children “in concert” with
three other people. § 2252A(g)(2). The predicates included
the conspiracies alleged in counts one and two, together
with multiple separate acts of distributing, receiving, and
advertising child pornography.
4 Nos. 15-2432 & 15-2447
The jury found the defendants guilty on all counts. On
the enterprise count, the jury found that Gries committed
10 predicate offenses, including the conspiracies charged in
counts one and two. The jury found that McCullars commit-
ted 17 predicate crimes, including the two conspiracies.
Under the Sentencing Guidelines, Gries faced an adviso-
ry imprisonment range of 324 to 405 months. The judge
imposed a sentence of 240 months on count one (conspiracy
to distribute child pornography), 360 months on count two
(the child-exploitation conspiracy), 360 months on the
enterprise count, and 240 months on each separate convic-
tion for receiving child pornography. The terms are concur-
rent, yielding an aggregate sentence of 360 months, the
midpoint of the advisory range. The guidelines recommend-
ed a life sentence for McCullars. The judge imposed a sen-
tence of 240 months on count one, 360 months on count two,
and life in prison on the enterprise count. Again these terms
are running concurrently.
II. Discussion
Gries and McCullars raise three arguments on appeal.
First, they contend that the separate sentences on the three
counts of conviction violate the Double Jeopardy Clause
because the conspiracies are predicates for, and thus lesser-
included offenses of, the enterprise offense. Next, they argue
that the government failed to prove an element of the con-
spiracy charge in count two—namely, that they “noticed” or
“advertised” child pornography for distribution or ex-
change. § 2251(d)(1)(A). Finally, they argue that their sen-
tences are unreasonably long.
Nos. 15-2432 & 15-2447 5
The defendants failed to preserve the first two argu-
ments, so our review is governed by the plain-error stand-
ard. Reversal is warranted only if a clear or obvious error in
the proceedings below affected the defendants’ substantial
rights and the fairness, integrity, or public reputation of the
judicial process. United States v. Christian, 673 F.3d 702, 708
(7th Cir. 2012).
A. Double Jeopardy
The defendants first argue that the conspiracy counts are
lesser-included offenses of the enterprise count, so imposing
concurrent sentences on all three counts amounts to three
separate punishments for the “same offense” in violation of
the Fifth Amendment’s Double Jeopardy Clause. 1 We agree.
It is well understood that two statutory violations are
considered to be the same offense for purposes of double
jeopardy when “one is a lesser included offense of the
other.” Rutledge, 517 U.S. at 297. The Supreme Court’s deci-
sion in Rutledge is directly applicable to the double-jeopardy
question presented here, though everyone apparently
missed it in the district court. In Rutledge the defendant was
charged with conspiracy to distribute controlled substances
in violation of 21 U.S.C. § 846 and a coterminous continuing
criminal enterprise (“CCE”) count under 21 U.S.C. § 848
based on the same conduct. Id. at 294–95. He was convicted
of both crimes and received concurrent life sentences. The
question before the Court was whether the convictions and
concurrent sentences violated the defendant’s Fifth Amend-
ment right not to be punished twice for the same offense.
1 “No person shall … be subject for the same offence to be twice put in
jeopardy of life or limb … .” U.S. CONST. amend. V.
6 Nos. 15-2432 & 15-2447
The Court held that it did and ordered the lower court to
vacate the lesser count. Id. at 307.
Under the familiar Blockburger test, if “the same act or
transaction constitutes a violation of two distinct statutory
provisions,” the double-jeopardy inquiry asks “whether
each provision requires proof of a fact which the other does
not.” Blockburger v. United States, 284 U.S. 299, 304 (1932). A
lesser-included offense nests within the greater offense and
therefore flunks the Blockburger test. Rutledge, 517 U.S. at 297
(“In subsequent applications of the [Blockburger] test, we
have often concluded that two different statutes define the
‘same offense,’ typically because one is a lesser included
offense of the other.”).
The Court began its analysis in Rutledge by noting that a
conviction under the CCE statute requires proof that the
defendant participated in a series of predicate drug crimes
“in concert” with at least five other persons. Id. at 295; see
also 21 U.S.C. § 848(c)(2)(A). The “in concert” element, the
Court held, “requires proof of a conspiracy that would also
violate § 846.” 517 U.S. at 300. This “straightforward applica-
tion of the Blockburger test” led the Court to conclude that
“conspiracy as defined in § 846 does not define a different
offense from the CCE offense defined in § 848.” Id. The
Court also noted that the CCE crime “is the more serious of
the two, and … only one of its elements is necessary to prove
a § 846 conspiracy.” Id. Accordingly, the Court held that a
conspiracy to violate § 846 is a lesser-included offense of a
factually coterminous § 848 enterprise crime and remanded
with instructions to vacate the lesser conviction and its
concurrent sentence. Id. at 307.
Nos. 15-2432 & 15-2447 7
Although Rutledge involved two drug crimes found in
Title 21, the Court’s reasoning plainly applies in the analo-
gous context of a child-exploitation enterprise. See, e.g.,
United States v. Wayerski, 624 F.3d 1342, 1350–51 (11th Cir.
2010) (holding that under Rutledge, a child-pornography
conspiracy is a lesser-included offense of a child-exploitation
enterprise under § 2252A(g)). Title 18 defines a child-
exploitation enterprise as “a series of” offenses involving
child victims, comprising “three or more separate incidents,”
and committed “in concert with three or more other per-
sons.” § 2252A(g)(2). The two conspiracies charged in this
case—a child-pornography conspiracy and a child-
exploitation conspiracy—served as predicates for the enter-
prise charge. The facts necessary to prove the two conspira-
cies were wholly incorporated into the enterprise count; the
jury’s verdict establishes as much. Applying Rutledge, then,
the conspiracy offenses are lesser-included offenses of the
enterprise count.
The government confesses the Rutledge error but argues
that reversal is unwarranted because the error was not
“obvious.” We disagree. The Rutledge rule is clear, long-
standing, and directly applicable. Because the conspiracies
are lesser-included offenses of the enterprise crime, multiple
sentences violate the Double Jeopardy Clause. The convic-
tions on count one and two should have been merged with
the enterprise conviction prior to the imposition of sentence.
The remedy is a remand with instructions to vacate the
convictions on the lesser counts. Rutledge, 517 U.S. at 307.
B. Sufficiency of the Evidence
The defendants also argue that the government failed to
prove all of the elements of the child-exploitation conspiracy
8 Nos. 15-2432 & 15-2447
charged in count two. As relevant here, the crime of child
sexual exploitation includes the act of knowingly publishing
“any notice or advertisement” to “receive, exchange, buy,
produce, display, distribute, or reproduce” child pornogra-
phy. § 2251(d)(1)(A). The defendants argue that a “notice” or
“advertisement” implies a public component, but the evi-
dence established only that they used a private, password-
protected chat room to exchange child pornography with a
limited group of individuals.
We have no need to address this question of statutory in-
terpretation. The conspiracy convictions must be vacated,
and the jury’s special verdict is more than sufficient to
support the § 2252A(g)(2) enterprise convictions even with-
out the conspiracy predicates. The jury found that each
defendant committed multiple predicate crimes against
children.
C. Unreasonable Sentences?
In their final argument, Gries and McCullars maintain
that their sentences are unreasonably long. In particular,
they attack the judge’s emphasis on the risk of recidivism.
They also argue that their prison terms are excessive as
compared to their coconspirators’ sentences.
District judges have broad discretion to prioritize and
weigh the relevant sentencing factors under 18 U.S.C.
§ 3553(a). Appellate review for reasonableness is highly
deferential; we will reverse only for an abuse of discretion.
United States v. Carter, 538 F.3d 784, 789 (7th Cir. 2008). A
reviewing court’s “disagreement with how the judge
weighted particular factors does not establish an abuse of
discretion.” United States v. Reibel, 688 F.3d 868, 871 (7th Cir.
Nos. 15-2432 & 15-2447 9
2012). And because the challenged sentences fall within
properly calculated guidelines ranges, the defendants face
an additional high hurdle: Guidelines sentences are “entitled
to a presumption of reasonableness.” United States v. Grigsby,
692 F.3d 778, 792 (7th Cir. 2012).
Gries and McCullars have not overcome the presumption
of reasonableness. When it comes to weighing the relevant
sentencing factors, the boundaries of the district judge’s
discretion are wide. Reibel, 688 F.3d at 872. Here the judge
touched on the most salient sentencing factors: the im-
portance of protecting children from sexual exploitation, the
need to deter the defendants and others from participating
in the market for child pornography, the broad scope and
lengthy duration of the criminal enterprise, the large number
of people involved, the vast amount of pornography they
exchanged, and the sheer depravity of the crime. Given the
nature and scope of this criminal enterprise, the judge
reasonably concluded that the risk of recidivism is high.
The argument that Gries and McCullars were treated
more harshly than their coconspirators does nothing to rebut
the presumption of reasonableness. See Grigsby, 692 F.3d at
793. Simply put, these defendants were not similarly situated
to the others; the other chat-room participants cooperated
with investigators, pleaded guilty, and some testified for the
government. See United States v. Statham, 581 F.3d 548, 556
(7th Cir. 2009). There is nothing unreasonable about impos-
ing different sentences on differently situated members of a
conspiracy.
REVERSED AND REMANDED
WITH INSTRUCTIONS.