In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2337
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
S COTT H ALLIDAY,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 2:09 CR 20031—Michael P. McCuskey, Chief Judge.
A RGUED M AY 9, 2011—D ECIDED F EBRUARY 14, 2012
Before EASTERBROOK, Chief Judge, and WOOD and
WILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. A federal grand jury charged
Scott Halliday in a superseding indictment with two
counts of receiving child pornography (in violation of 18
U.S.C. §§ 2252A(a)(2)(A) and (b)(1)) and one count of
possessing child pornography (in violation of 18 U.S.C.
§§ 2252A(a)(5)(B) and (b)(2)). The indictment charged
that the receipt offenses occurred, respectively, “[o]n or
2 No. 10-2337
before April 20, 2008,” and “[o]n or before May 27, 2008.”
The possession count charged that the offense occurred
“[o]n or between April 20, 2008, and May 27, 2008.” A
jury returned a guilty verdict against Halliday on
all three counts. On May 28, 2010, the district court sen-
tenced Halliday on all three counts to a prison
term totaling 240 months, and judgment was entered
on June 2, 2010.
Halliday now appeals his convictions and sentence.
First, he argues that the district court’s entry of convic-
tions and concurrent sentences on separate counts for
receipt and possession of child pornography violates
the Double Jeopardy Clause of the Fifth Amendment
because possession is a lesser-included offense of receipt.
Because we find that the evidence in this case sufficiently
shows that the receipt and possession convictions were
based on different conduct, we do not find plain error
and affirm the entry of his convictions. Halliday also
argues that his sentence was based on an erroneous
assumption and was unreasonable. We conclude that
the district court improperly relied on Halliday’s sup-
posed beliefs about the criminal nature of his acts,
and vacate Halliday’s sentence and remand for a
resentencing.
I. BACKGROUND
In September 2007, Halliday married and moved into
his wife’s apartment in Rantoul, Illinois. In March 2008,
they bought a new computer and set it up in their bed-
room. Halliday installed LimeWire, a file-sharing soft-
No. 10-2337 3
ware program that they used to download and watch
movies. Halliday was a stay-at-home father to the
couple’s young son, and was spending, by his wife’s
account, up to ten hours a day on the computer. On
May 28, Halliday moved out of his wife’s apartment at
her request and into his mother’s home in Champaign.
In May and July 2008, a criminal investigator for the
Illinois Attorney General’s Office conducted an internet-
based search for shared computer folders that contained
suspected child pornography. On May 13, the in-
vestigator remotely downloaded from the Hallidays’ com-
puter seven shared files containing suspected child por-
nography. On July 17, the investigator downloaded an-
other six files containing suspected child pornography.
In November 2008, law enforcement officers obtained
and executed a warrant to search Sarah Halliday’s resi-
dence, and seized the computer there. Investigators
analyzed the computer’s hard drive and found 15 videos
containing child pornography. The download dates
for these videos were: April 20, 2008 (three videos),
April 21 (one video), April 27 (six videos), May 1 (one
video), May 2 (one video), May 12 (one video), May 26
(one video), and May 27 (one video).
Halliday was interviewed on the day of the search,
and initially said he downloaded some child pornography
by accident and tried to delete it. He later admitted he
used search terms such as “underage girls” to locate
pornographic movies involving minor females and that
he was most likely responsible for any child pornography
found on the computer.
4 No. 10-2337
Halliday was indicted and charged with two counts
of receiving child pornography and one count of pos-
sessing child pornography. According to the indict-
ment, the two receipt offenses occurred “on or before
April 20, 2008” (Count One) and “on or before May 27,
2008” (Count Two). The possession offense (Count Three)
occurred “on or between” those dates. In her opening
statement the prosecutor stated that “[t]he first date and
the first count is April 20, 2008. The second count is
May 27, 2008.” As to the possession count, the prosecutor
stated that “[t]he dates for this offense—and this is for
Count 3—are between April 20, 2008, and May 27, 2008.
So Count 1 and 2 are for the first time he received, the
last time he received, and possession for everything in
between.” During its case, the government published
clips from eight videos, including clips from the first and
last videos Halliday downloaded, April 20, 2008 (one
video) and May 27 (one video), and six videos he down-
loaded in between, the dates of which were April 27 (three
videos), May 1, 2008 (one video), May 2 (one video),
May 12 (one video). In its closing arguments, the govern-
ment stated that the two receipt counts were “for the two
dates: April 20, 2008, and the very last time, May 27, 2008.”
As to the possession count, the prosecutor stated, “[s]o
now we’re looking at the time period between April 20,
2008, and March—or May 27, 2008.” The court did not
instruct the jury that it could not use the same videos
to convict on both the receipt and possession counts.
The jury found Halliday guilty on all three counts.
Halliday did not raise a double jeopardy objection fol-
lowing the verdict, or seek to prevent the district court
from entering judgment on any of the three counts.
No. 10-2337 5
At sentencing on May 28, 2010, there were no objec-
tions to the pre-sentence investigation report, and the
district court adopted it in its entirety. The pre-sentence
report recommended that the two receipt and the pos-
session counts be grouped together because of the “on-
going and continuous” nature of the offense, and
applied United States Sentencing Guideline § 2G2.2(a)(2),
which triggered a base offense level of twenty-two.
Two levels were added because the material involved a
minor who had not attained the age of 12 years;
two were added because Halliday utilized LimeWire to
facilitate downloading; and another two-level adjust-
ment applied because of the use of a computer. The
district court also found that the material involved
sadistic or masochistic conduct or other depictions of
violence, warranting a four-level adjustment. The court
found that the offense involved 15 videos, equaling 1125
images, resulting in a five-level increase. The court there-
fore calculated a total offense level of thirty-seven, and
a criminal history category of one, resulting in an
advisory range of 210-262 months’ imprisonment. The
government requested a 210-month prison term, and the
defense agreed with the government and stated that a
within-Guidelines sentence would be “appropriate.”
Halliday spoke at sentencing, stating that he believed
he was coerced into confessing, and asked to take a poly-
graph test to prove his innocence. He also stated that
he had received ineffective assistance of counsel based
on counsel’s failure to call specific witnesses. The
court stated that it would not sentence Halliday to the
statutory maximum of 30 years, but would choose a “mid-
6 No. 10-2337
range Guideline sentence in excess of what the Govern-
ment asked for.” The court sentenced Halliday to
240 months’ imprisonment, consisting of 240 months on
the two receipt counts (Counts I and II) and 120 months
on the possession count (Count III), to run concurrently.
The court also imposed a fifteen-year term of supervised
release.
II. A NALYSIS
A. Double Jeopardy Claim
Because Halliday did not raise a double jeopardy claim
below, this court will review the claim for plain error.
Fed. R. Crim. P. 52(b); United States v. Van Waeyenberghe,
481 F.3d 951, 958 (7th Cir. 2007). “Under the plain error
standard, the party asserting the error must establish
(1) that there was in fact an error; (2) that the error
was plain; and (3) that the error affects substantial
rights.” United States v. Van Allen, 524 F.3d 814, 819 (7th
Cir. 2008) (internal quotations omitted). Even where
plain error is found, the defendant is not automatically
entitled to relief. The relief afforded by Rule 52(b) is
discretionary, and “[w]e will not exercise our discretion
to consider the error unless it ‘seriously affect[s] the
fairness, integrity or public reputation of judicial pro-
ceedings.’ ” Id. (quoting United States v. Olano, 507 U.S.
725, 732 (1993)); see also United States v. Faulds, 612 F.3d
566, 568 (7th Cir. 2010).
Halliday argues that the district court’s entry of
separate convictions for receipt and possession of child
No. 10-2337 7
pornography was a violation of the Double Jeopardy
Clause of the Constitution, because possession is a lesser-
included offense of receipt. The Double Jeopardy Clause
states 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. But Halliday’s argument in reality is a
question of statutory interpretation. The Supreme Court
has stated that when multiple sentences are imposed in
the same trial, “the role of the constitutional guarantee
is limited to assuring that the court does not exceed its
legislative authorization by imposing multiple punish-
ments for the same offense.” Brown v. Ohio, 432 U.S. 161,
165 (1977) (emphasis added); see also Albernaz v. United
States, 450 U.S. 333, 344 (1981). Courts may not “prescrib[e]
greater punishment than the legislature intended.”
Rutledge v. United States, 517 U.S. 292, 297 (1996) (quoting
Missouri v. Hunter, 459 U.S. 359, 366 (1983)). So the ques-
tion is whether Congress intended to punish both
receipt of child pornography and possession of the
same child pornography.
Courts presume that “where two statutory provisions
proscribe the ‘same offense,’ ” a legislature does not
intend to impose two punishments for that offense. Id.
(quoting Whalen v. United States, 445 U.S. 684, 691-92
(1980); Ball v. United States, 470 U.S. 856, 861 (1985)). The
Supreme Court has held that courts determine whether
a defendant has been punished twice for the “same of-
fense” by applying the rule set forth in Blockburger v.
United States, 284 U.S. 299, 304 (1932). See also Rutledge, 517
U.S. at 297. In Blockburger, the Court stated that if “the
same act or transaction constitutes a violation of two
8 No. 10-2337
distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one,
is whether each provision requires proof of a fact which
the other does not.” Blockburger, 284 U.S. at 304. The
Court has at times concluded that two different statutes
define the “same offense” because one is a lesser-
included offense of the other. Rutledge, 517 U.S. at 297; Ball
v. United States, 470 U.S. 856, 861-64 (1985) (concluding
that multiple prosecutions were barred because statutes
directed at “receipt” and “possession” of a firearm
amounted to the “same offense,” in that proof of receipt
“necessarily” included proof of possession); Whalen,
445 U.S. at 691-95 (concluding that two punishments
could not be imposed because rape and felony murder
predicated on the rape were the “same offense”); Brown
v. Ohio, 432 U.S. 161, 167-68 (in multiple proceedings
context, applying Blockburger to confirm state-court
conclusion that offense of “joyriding” was a lesser
included offense of auto theft).
In Ball, the Supreme Court sought to answer the ques-
tion of whether Congress intended to subject defendants
to separate convictions for “receiving” a firearm and
“possessing” that same firearm. Ball, 470 U.S. at 861-64.
The Court found that “ ‘when received, a firearm is neces-
sarily possessed’ . . . . In other words, Congress seems
clearly to have recognized that a felon who receives a
firearm must also possess it, and thus had no intention
of subjecting that person to two convictions for the
same criminal act.” Id. at 862 (quoting United States v.
Martin, 732 F.2d 591, 592 (7th Cir. 1984)).
No. 10-2337 9
We have not addressed whether possession of child
pornography is a lesser-included offense of receipt
under Blockburger and Ball, but we have found that the
convictions are distinct in the context of challenges to
applications of the United States Sentencing Guidelines.
Halliday argues that these cases were wrongly decided,
and so we address their relevance to this case. In
United States v. Myers, 355 F.3d 1040 (7th Cir. 2004), the
defendant pleaded guilty to two counts, including re-
ceiving three videotapes in violation of 18 U.S.C.
§ 2252(a)(2), and possession of three or more images
of child pornography in the form of video-cassette tapes
and computer-generated image files in violation of 18
U.S.C. § 2252(a)(4)(B). Myers argued that the district
court erred in calculating his base level as seventeen
pursuant to U.S.S.G. § 2G2.2, which was the provision
for receipt of child pornography, rather than the lower
base level of fifteen pursuant to U.S.S.G. § 2G2.4, which
applied at the time to possession of child pornography.1
The defendant also argued that anyone in possession
of child pornography must have received it at some
point, and therefore that the distinction between receipt
and possession of child pornography was meaningless.
We held that § 2252(a)(2), a receipt provision, includes
a scienter requirement, such that a person who seeks out
only adult pornography, but is sent a mix of adult
and child pornography, would not have violated that
1
U.S.S.G. § 2G2.4 was consolidated with § 2G2.2 effective
November 1, 2004. See U.S. Sentencing Guidelines Manual
Supp. App. C, Amend. 664 (2010).
10 No. 10-2337
statutory provision. That same person, we went on,
could be liable under the possession provision,
§ 2252(a)(4)(B), if he then decided to retain the material,
thereby “knowingly” possessing it. We held that “[b]e-
cause possession and receipt are not the same conduct
and threaten distinct harms, the imposition of different
base offense levels is not irrational and therefore
Myers’ challenge must fail.” Id. at 1043.
We soon re-affirmed Myers in United States v. Malik,
385 F.3d 758, 759 (7th Cir. 2004), which involved a
similar Guidelines challenge to a sentence imposed
after convictions for § 2252A(a)(2)(A), the same receipt
provision at issue here, and § 2252A(a)(5)(B), the same
possession provision. We stated that “Myers . . . holds
that, because the receipt offense requires proof that
the defendant knew that the persons depicted were
minors, . . . while the possession offense lacks that
scienter requirement, it is entirely appropriate to use
the receipt guideline for conduct that violates both stat-
utes.” Id. at 760. The receipt provision found in
§ 2252A(a)(2) was then challenged on vagueness
grounds in United States v. Watzman, 486 F.3d 1004, 1009-
10 (7th Cir. 2007), where the defendant argued that
the statute does not define receipt or distinguish the case
from mere possession. Relying on Myers and Malik, we
rejected Watzman’s argument that receipt and posses-
sion are substantially the same offense.
Admittedly, the reasoning of these cases is now in
question, both because of our more recent views of the
scienter requirement in possession cases, and because
No. 10-2337 11
of how our sister circuits have viewed possession and
receipt in the child pornography context. Though we
stated in Malik that knowledge of the age of the indi-
vidual in the image is not a requirement for possession,
we found in United States v. Peel, 595 F.3d 763, 771
(7th Cir. 2010) that “[p]ossession of a photograph of
an underage girl or boy must be knowing,” under 18
U.S.C. § 2252A, and we rejected the argument that the
government failed to prove that Peel knew that
the person in the photographs he took was under the
age of eighteen based on the facts of the case. Other
circuits have read United States v. X-Citement Video, Inc., 513
U.S. 64 (1994), which dealt with knowledge under
the receipt provision, to apply the same scienter require-
ment to both possession and receipt of child pornography.
See, e.g., United States v. McNealy, 625 F.3d 858, 870
(5th Cir. 2010) (“The relevant scienter requirement goes
both to the receipt and possession of the material[.]”).
The Ninth and Third Circuits have applied Blockburger
and Ball and concluded that § 2252A(a)(5)(B) (possession)
is a lesser-included offense of § 2252A(a)(2) (receipt),
because receiving an item necessitates taking possession
of it. See United States v. Davenport, 519 F.3d 940, 943-44
(9th Cir. 2008); United States v. Miller, 527 F.3d 54, 71-72
(3d Cir. 2008). Those courts found that the crime of pos-
session does not require proof of an element that the
crime of receipt does not, and therefore applied a pre-
sumption under Blockburger that Congress did not
intend separate punishments. Davenport, 519 F.3d at 947;
Miller, 527 F.3d at 72. The courts did not find a contrary
view clearly expressed in the statute, and therefore deter-
12 No. 10-2337
mined that a defendant cannot be convicted of both
receipt and possession under § 2252A. Davenport, 519
F.3d at 947 (finding that “the presumption against
multiple punishment arising from a Blockburger analysis
could be overcome by a clear expression of legislative
intent to the contrary,” but that “it cannot be said that
Congress ‘clearly’ intended” separate punishments for the
statutes at issue) (citing Missouri v. Hunter, 459 U.S. 359,
367 (1983)); see also Miller, 527 F.3d at 72 (“No such view
is discernible, in this case, from the language of § 2252A
or the general descriptions of the statute’s purpose con-
tained in the Congressional reports.”). Though not at
issue in the case before it, the Sixth Circuit assumed the
same. See United States v. Morgan, 435 F.3d 660, 662-63
(6th Cir. 2006) (stating that the defendant entered a con-
ditional plea to § 2252A(a)(5)(B), “a lesser-included
offense of the charged violation,” section 2252A(a)(2)).2
Our sister circuits’ holdings regarding § 2252A would
cause us to question our earlier decisions in Myers,
2
In United States v. Bobb, 577 F.3d 1366, 1375 (11th Cir. 2009), the
Eleventh Circuit agreed with the Ninth and Third Circuits
that possession is a lesser-included offense of receipt under
18 U.S.C. § 2252A(a), but found that the defendant’s convic-
tions were based on separate conduct. The Second Circuit
has similarly found the reasoning of the Ninth and Third
Circuits “persuasive,” but has not yet specifically applied
those cases’ rationale. See United States v. Polouizzi, 564 F.3d
142, 159 (2d Cir. 2009) (“[A]lthough we find the reasoning of
Davenport and Miller persuasive, that reasoning does not
apply perfectly to the circumstances of this case.”).
No. 10-2337 13
Malik, and Watzman and their application under Block-
burger to the entry of separate convictions for receipt
and possession. However, we need not decide in this
case whether to align ourselves with them on the issue
of whether possession of child pornography is a lesser-
included offense of receipt. “The Blockburger test
is implicated only ‘where the same act or transaction con-
stitutes a violation of two distinct statutory provi-
sions.’ ” United States v. Faulds, 612 F.3d 566, 571 (7th Cir.
2010) (quoting United States v. Schales, 546 F.3d 965, 978
(9th Cir. 2008)) (emphasis added). Where separate
images form the bases for separate receipt and possession
counts, there can be no double jeopardy violation. Id.;
see also United States v. Irving, 554 F.3d 64, 77-79 (2d Cir.
2009) (finding that no double jeopardy violation
would exist where the possession count was based on
an image that did not form the basis of the receipt convic-
tion). Though the indictment in this case was far
from perfect, we find under the facts of this case that
because there was ample proof of separate videos
that formed the bases of the receipt and possession con-
victions, any error was harmless and therefore did
not affect the defendant’s substantial rights under a
plain error analysis. See United States v. Turner, 651 F.3d
743, 748 (7th Cir. 2011) (“The third prong of the plain
error test—whether the error affected the defendant’s
substantial rights—calls for essentially the same inquiry
as a harmless error analysis.”) (citing United States v.
Wheeler, 540 F.3d 683, 690 (7th Cir. 2008)).
Halliday argues that in light of the dates charged in
the indictment, the jury could have relied on the same
14 No. 10-2337
videos to convict on both the receipt and possession
counts. The receipt counts of the indictment charged
Halliday with receiving child pornography in violation
of § 2252A(a)(2)(A) “[o]n or before April 20, 2008,” and
“[o]n or before May 27, 2008,” respectively. The posses-
sion count charged him with possessing child pornog-
raphy in violation of § 2252A(a)(5)(B) “[o]n or between
April 20, 2008, and May 27, 2008.” The prosecutor, how-
ever, both in her opening and closing statements
specified that the videos that formed the bases of the
receipt counts were downloaded “on” April 20, 2008 and
May 27, 2008, respectively, and that the possession counts
were related to videos “between” those dates. Of course
the prosecutor’s opening and closing statements are not
evidence, but those statements coincide with the testi-
mony and evidence presented at trial. Halliday does
not now point to any evidence at trial that would cause
a reasonable juror to cast aside any of the downloads
on specific dates and solely rely on one video to convict on
all counts, and he does not dispute that he downloaded
eleven different video clips between April 20 and
May 27, which were distinct from the ones downloaded
on April 20 and the one downloaded on May 27.
Despite the deficiencies in the indictment, the pros-
ecutor’s statements and the evidence at trial showed
that there were different download dates and therefore
separate conduct. Any error was therefore harmless.
Halliday relies on two cases from the Ninth Circuit
for the proposition that the face of the indictment must
properly set forth the separate conduct relied upon for
the separate counts, but these cases are distinguishable.
No. 10-2337 15
In United States v. Schales, 546 F.3d 965, 979 (9th Cir. 2008),
the receipt count charged the defendant with knowingly
receiving child pornography “from in or about Janu-
ary 2005, and continuing through September, 2005 . . .,”
and the possession count charged him with knowingly
possessing child pornography “from in or about Janu-
ary 2005, and continuing through October 4, 2005.” On
appeal, the government did not argue that the separate
counts were based on wholly distinct images or videos;
rather, it argued that the separate conduct was the
“receipt of the child pornography pictures on his
computer hard drive,” and then the “printing out of
those images and retaining them on multiple compact
discs.” Id. at 979. The government in Schales “argued to
the jury that it could convict Schales on all three counts
by relying solely on one image.” Id. at 980. The images
at issue were the same, but it was the medium that was
alleged to have been different. The Ninth Circuit had
previously held that “where a defendant has stored
sexually explicit images in separate mediums, the gov-
ernment may constitutionally charge that defendant
with separate counts for each type of material or
medium possessed.” Id. at 979 (citing United States v.
Lacy, 119 F.3d 742, 748 (9th Cir. 1997)). In Schales, the
court therefore held that “[i]f the government wishes to
charge a defendant with both receipt and possession
of material involving the sexual exploitation of minors
based on separate conduct, it must distinctly set forth
each medium forming the basis of the separate counts.”
Id. at 980 (emphasis added).
Similarly, in United States v. Lynn, 636 F.3d 1127, 1137
(9th Cir. 2011), there were different dates alleged in the
16 No. 10-2337
indictment with respect to the receipt and possession
counts, but, as in Schales, the court’s inquiry considered
“whether Lynn’s transfer of digital image or video files
of child pornography from one folder to another on his
laptop’s hard drive constitute[d] separate conduct so as
to avoid double jeopardy.” Again, this was not a case
where the record as a whole showed that the govern-
ment was relying on different images or videos for the
separate receipt and possession counts; it was solely
arguing that a transfer from one medium to another
allowed separate convictions, a distinction that the
Ninth Circuit found had to be specifically alleged and
proven.
In this case, the government did not allege at trial,
and does not now argue, that the same pornography
formed the bases of the separate offenses, and that only
the storage medium differed; rather, the government
argued to the jury and presented evidence that there
were different download dates for each video. We have,
in the multiplicity context, found that even where the
indictment contains overlapping time periods, the gov-
ernment’s evidence at trial can support a finding of
separate violations. See United States v. Snyder, 189
F.3d 640, 647 (7th Cir. 1999) (finding that the Double
Jeopardy Clause was not implicated in a multiplicity
challenge where “the indictment alleges that the viola-
tions occurred over a nine-month period between
January and October 1996, and the government presented
evidence that Snyder committed numerous separate
acts during this period”).
No. 10-2337 17
While we do not today overturn Myers, Malik, or
Watzman, we note that in future cases, the government
would be wise to clearly indicate in the indictment
which images are included in each count of the indict-
ment. Additionally, where both receipt and possession
are charged, we would also think it wise for the court
to instruct the jury that any images and videos relied
on for a receipt count cannot form the basis of a convic-
tion for a possession count. The absence of such an in-
struction in this case, however, does not alter our analysis.
B. Sentencing Challenge
Halliday also challenges his 240-month within-Guide-
lines sentence. He primarily frames his challenge as one
attacking the reasonableness of his sentence, but raises
issues that go to both procedural error and substantive
unreasonableness.
When reviewing any sentence, we must “ensure that
the district court committed no significant procedural
error, such as failing to calculate (or improperly calculat-
ing) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence . . . .”
United States v. Abbas, 560 F.3d 660, 666 (7th Cir. 2009)
(quoting Gall v. United States, 552 U.S. 38, 51 (2007)); see
also United States v. Hill, 645 F.3d 900, 905 (7th Cir.
2011). After determining that no procedural errors oc-
curred, we consider whether the sentence is reasonable.
United States v. Gordon, 513 F.3d 659, 666 (7th Cir. 2008).
18 No. 10-2337
We presume that a sentence within a properly calculated
Guideline range is reasonable, United States v. Liddell,
543 F.3d 877, 885 (7th Cir. 2008), but this presumption
is rebuttable. A district court must provide a justifica-
tion for its sentence “adequate to allow for meaningful
appellate review and to promote the perception of fair
sentencing.” United States v. Scott, 555 F.3d 605, 608 (7th
Cir. 2009) (quoting United States v. Omole, 523 F.3d 691,
698 (7th Cir. 2008)) (internal quotation marks omitted).
Halliday argues that the district court erred in
assuming it could impose consecutive sentences for
the receipt and possession counts and impose a
statutory maximum sentence of thirty years. Because
Halliday did not raise a double jeopardy claim or object
to the calculation of the statutory maximum, we review
the claim for plain error. See United States v. Washington,
417 F.3d 780, 788 (7th Cir. 2005) (stating that where a
sentencing claim is forfeited, this court can correct an
error only if the defendant demonstrates that it was
plain error). This assumption would only amount to any
error, however, if there were a double jeopardy viola-
tion, an argument we rejected for the reasons set forth
above.
Next, Halliday argues that the sentencing court
violated the command of § 3553(a)(6) to take into
account the need to avoid unwarranted sentencing dis-
parities among defendants with similar records who
were found guilty of similar conduct. Halliday contends
that his sentence was longer than those imposed on
other defendants who received or possessed more
No. 10-2337 19
images or whose crimes were comparable or worse than
his own, and he cites cases from other circuits where
defendants received substantially lower sentences for
similar, or even worse, conduct. See, e.g., United States
v. Bobb, 577 F.3d 1366, 1370 (11th Cir. 2009) (defendant
convicted of receipt and possession of over 6000 images
and sentenced to 96 months); United States v. Bryner, 392
Fed. Appx. 68, 70, 73 (3d Cir. 2010) (unpublished) (defen-
dant sentenced to 100 months on each count of receipt and
possession of child pornography, to run concurrently,
where he possessed “in excess of 1000 images of child
pornography”); United States v. Peacock, 403 Fed. Appx.
474, 474-75 (11th Cir. 2010) (unpublished) (defendant
convicted of possession of child pornography and re-
ceiving, or distributing child pornography, downloaded
56 videos (4200 images) and 130 images of child pornog-
raphy, and received a sentence of 150 months).
We have stated that “[w]hile comparisons are appro-
priate, it is important in the first instance to recall that
the Guidelines were intended to create national unifor-
mity.” United States v. Newsom, 428 F.3d 685, 689 (7th Cir.
2005). The Supreme Court in Gall wrote that where a
sentencing judge “correctly calculated and carefully
reviewed the Guidelines range, he necessarily gave sig-
nificant weight and consideration to the need to avoid
unwarranted disparities.” 552 U.S. at 54 (emphasis
added); see also United States v. Pape, 601 F.3d 743, 750
(7th Cir. 2010) (“[A] district court judge necessarily con-
siders unwarranted disparities among defendants when
it decides to impose a within-Guidelines sentence.”)
(citations omitted). This conception, however, may be in
20 No. 10-2337
tension with the fact that some courts have specifically
found U.S.S.G. § 2G2.2 to be flawed, and have imposed
sentences below the Guidelines range. See, e.g., United
States v. Diaz, 720 F. Supp. 2d 1039 (E.D. Wis. 2010) (col-
lecting cases); see also, United States v. Dorvee, 616 F.3d
174, 188 (2d Cir. 2010); United States v. Grober, 624 F.3d
592, 609-10 (3d Cir. 2010) (finding no procedural error
in district court’s rejection of Section 2G.2.2). As we have
noted in the past, seventy percent of district judges sur-
veyed in 2010 indicated that the Guidelines ranges for
possession of child pornography are too high, and sixty-
nine percent consider the ranges for receipt of child
pornography too high. United States v. Maudling, 627 F.3d
285, 287 (7th Cir. 2010) (citing U.S. Sentencing Comm’n,
Results of Survey of United States District Judges Jan-
uary 2010 through March 2010, at tbl.8 (2010), http://www.
ussc.gov/Research/Research_Projects/Surveys/20100608_
Judge_Survey.pdf). The Sentencing Commission has re-
ported that in 2010, district judges issued below-Guide-
lines sentences in forty-four percent of the cases gov-
erned by U.S.S.G. § 2G2.2, the Guideline for receipt and
possession, compared with 17.9 percent of all cases. See
U.S. Sentencing Comm’n, Final Quarterly Data Report:
Fiscal Year 2010, at 14 tbl.5 & 1 tbl.1 (2010), available at
h tt p ://w w w .u ss c .gov /D at a_ an d _S t a t i s t i c s/ Fe d er al_
Sentencing_Statistics/Quarterly_Sentencing_Updates/US
SC_2010_Quarter_Report_4th.pdf. The Sentencing Com-
mission has also stated that “[s]entencing courts have . . .
expressed comment on the perceived severity of the child
pornography [G]uidelines through increased below-
guidelines variance and downward departure rates.”
No. 10-2337 21
U.S. Sentencing Comm’n, The History of the Child Pornog-
raphy Guidelines 54 (2009), available at http://www.
ussc .gov /R es earch/Research_Projects/Sex_Offenses/
20091030_History_Child_Pornography_Guidelines.pdf.
While we have rejected the argument that district courts
are required to sentence below the Guidelines range in
cases involving U.S.S.G. § 2G2.2, we have noted that such
criticism has been “gaining traction.” United States v.
Huffstatler, 571 F.3d 620, 622 (7th Cir. 2009); see also
United States v. Maudling, 627 F.3d 285, 287-88 (7th Cir.
2010). We have also held that “district judges are at
liberty to reject any Guideline on policy grounds—though
they must act reasonably when using that power.” United
States v. Corner, 598 F.3d 411, 415 (7th Cir. 2010) (en banc)
(emphasis in original); see also Pape, 601 F.3d at 749.
But here, Halliday did not present the district court
with cases in which defendants with similar conduct
received lower sentences, and does not argue that the
district court was unaware of its discretion to disagree
with the Guidelines as they applied to his case. Accord-
ingly, we cannot find procedural error with respect to
the application of § 3553(a)(6).3
3
Halliday also argues that his sentence under U.S.S.G. § 2G2.2
was substantively unreasonable, essentially because Gall
suggests that a within-Guidelines sentence under § 2G2.2
“necessarily” takes into account national disparities, 552
U.S. at 54, but such a sentence does not account for actual
disparities that abound because of policy disagreements with
the Guideline. But because we remand for a resentencing
(continued...)
22 No. 10-2337
And so we come to the meritorious objection. Halliday
points to statements made during sentencing that he
argues show reliance on an improper fact, or rather,
improper speculation as to Halliday’s beliefs. Because
no objection was made at sentencing, we review for
plain error.
A review of the sentencing transcript in this case
reveals that the sentencing judge relied heavily on
Halliday’s lack of remorse and his lack of truthfulness,
perfectly permissible sentencing factors. See 18 U.S.C.
§ 3553(a)(2)(A) (including as proper factor the need “to
promote respect for the law”). But it also reveals that
the judge relied on the assumption that Halliday
believed the crime was “victimless” and that he did not
“believe any of this is criminal.” The district judge
began the pronouncement of the sentence by discussing
a wholly unrelated child pornography case, where
the defendant argued that the crime was victimless.
He stated:
A gentleman from Danville decided to take the stand
under oath . . . and said: This is a victimless crime. . . .
Since that time I determined that maybe people and
the Court need to be reminded of what child pornogra-
phy is. . . . It’s not a victimless crime.
The district judge later stated:
3
(...continued)
based on a procedural error, we decline to address this sub-
stantive reasonableness argument.
No. 10-2337 23
I don’t think you believe any of this is criminal. At
least—at least James Falls, who is going to be
reviewed by the Court of Appeals, stood before the
jury and said: Whoever watches this should be put
in jail. But I didn’t put it on my computer. Even that
person could see the criminality of child pornography
while he lied to the jury and said the government
put it on his computer.
The judge continued:
Will [the sentence] ensure consistent, fair, determi-
nate, and proportional sentences to avoid unwar-
ranted disparities among similarly situated defen-
dants? Yes. When this Court has seen no remorse,
no acceptance; belief that this is just ordinary conduct,
victimless crimes . . . .
(Emphasis added.) The repeated focus on the defendant’s
belief in the lawfulness of the offenses or lack of victims
would be perfectly reasonable to discuss, except that
nowhere at trial or at sentencing did Halliday maintain
or assert that receiving and possessing child pornog-
raphy was not criminal or were victimless offenses. He
simply maintained that he was coerced into a confes-
sion, was innocent, and that he suffered ineffective as-
sistance of counsel. The district court was certainly per-
mitted to disregard Halliday’s assertion of innocence
and ineffective assistance arguments, and did, but it
was not permitted to rely upon a false or undeveloped
assumption in applying the § 3553(a) factors. Sen-
tencing judges have “discretion to draw conclusions
about the testimony given and evidence introduced at
24 No. 10-2337
sentencing,” but cannot base sentencing determinations
on “speculation or unfounded allegations.” United States
v. Bradley, 628 F.3d 394, 400 (7th Cir. 2010) (quoting
United States v. England, 555 F.3d 616, 622 (7th Cir. 2009));
see also United States v. Durham, 645 F.3d 883, 899-900
(7th Cir. 2011). The judge’s statements about Halliday’s
belief that the crimes at issue were “victimless” were
pure speculation.
Having determined that a plain error occurred,
we address whether the error affected Halliday’s sub-
stantial rights “by resulting in a different sentence than
he otherwise would have received.” Durham, 645 F.3d
at 900 (citing United States v. Corona-Gonzalez, 628 F.3d
336, 341 (7th Cir. 2010)). Our reading of the sentencing
transcript leads us to conclude that it is “not improbable
that the trial judge was influenced by improper factors
in imposing sentence,” id. (citation omitted), especially
where the sentencing judge specifically referenced
Halliday’s “victimless” belief when addressing the
§ 3553(a) factors. Finally, we conclude that a sentence
potentially based on such an erroneous assumption
affects the fairness, integrity, and public reputation of
the proceeding. Id. (citation omitted). We therefore vacate
Halliday’s sentence and remand for a new sentencing
proceeding. On remand, the district court must reassess
the sentence without the erroneous assumption about
Halliday’s beliefs referenced above. Because we remand
for a resentencing, we do not address Halliday’s argu-
ment that his sentence was substantively unreasonable.
No. 10-2337 25
III. CONCLUSION
For the reasons set forth above, we A FFIRM Halliday’s
conviction but V ACATE his sentence and R EMAND for
reconsideration.
2-14-12