In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1124
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JEFFREY ESPOSITO,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
Case No. 1:18-CR-00109— Jane E. Magnus-Stinson, Judge.
____________________
ARGUED MAY 12, 2021 — DECIDED JUNE 11, 2021
____________________
Before FLAUM, HAMILTON, and BRENNAN, Circuit Judges.
BRENNAN, Circuit Judge. Jeffrey Esposito, convicted of mul-
tiple counts of sexually exploiting a child as well as of pos-
sessing child pornography, was sentenced to 200 years in
prison. He appeals, arguing that the district erred when, ra-
ther than first determining his total punishment, sentences
were imposed on each individual count and then added to-
gether. Because the district court did not err when sentencing
Esposito, we affirm.
2 No. 20-1124
I
Jeffrey Esposito sexually assaulted and abused his
adopted son from Guatemala for years, beginning when his
son was seven or eight years old and ending a couple of years
before he turned sixteen. Esposito’s crimes were repetitive,
shocking, and horrific. In addition to anal and oral penetra-
tion, including with objects, the abuse included urinating on,
choking, whipping, tying, and putting a collar on the victim.
Esposito documented his abuse in videos and photographic
images which he shared online on the dark web. He had also
downloaded other child pornography—hundreds of thou-
sands of images and videos—by the time he was arrested by
federal law enforcement.
Esposito was charged with 20 counts of sexually exploit-
ing a minor, each reflecting a different instance of abuse doc-
umented in videos and images taken by the defendant. He
was also charged with one count of possessing child pornog-
raphy. Esposito pleaded guilty without a plea agreement.
In the presentence investigation report, the defendant’s of-
fense level was calculated at 51, which defaulted to a maxi-
mum of 43 under the Sentencing Guidelines. Esposito had no
criminal history. The resulting Guidelines range was life in
prison, but none of the crimes of which Esposito was con-
victed had a statutory maximum of life imprisonment. The
probation department recommended that Esposito be impris-
oned for 600 years. The government argued for 620 years. The
defense suggested 420 months, so Esposito would finish his
sentence in approximately 28 years. That length would give
Esposito, who is in his mid-fifties, a chance at release from
prison near the end of his life.
No. 20-1124 3
At the sentencing hearing, the district court explained
why it concluded that a de facto life sentence was appropriate
for Esposito. Then the court pronounced Esposito’s sentences,
count by count, imposing six 30-year sentences to be served
consecutive to each other, followed by fifteen 20-year sen-
tences to be served concurrent with each other but consecu-
tive to the 30-year sentences. These sentences totaled 200
years in prison.
Esposito now appeals, claiming the district court sen-
tenced him erroneously. He argues the court should have con-
sidered his criminal conduct, history, and characteristics as a
whole, determined an appropriate overall punishment, and
then set the sentences for each count to equal that overall pun-
ishment.
II
A
The parties dispute the standard of review. At the sentenc-
ing hearing, the defendant did not object to the method the
court used to arrive at his sentences, although he did seek
clarification of the consecutive-versus-concurrent aspect of
the sentences and how the 200 years was calculated.
The defendant contends he has raised a procedural chal-
lenge, so review is de novo. See United States v. Ballard, 950
F.3d 434, 436 (7th Cir. 2020); United States v. Pennington, 908
F.3d 234, 238 (7th Cir. 2018). He also argues he had no obliga-
tion to object under Federal Rule of Criminal Procedure 51(a),
which provides “[e]xceptions to rulings or orders of the court
are unnecessary.”
The government submits that the plain error doctrine un-
der Federal Rule of Criminal Procedure Rule 52(b) should
4 No. 20-1124
apply here. Plain error has three elements: the error (1) has
not been intentionally relinquished or abandoned, (2) must be
clear or obvious, and (3) must have affected the defendant’s
substantial rights. Molina-Martinez v. United States, 136 S. Ct.
1338, 1343 (2016). We should review for plain error, the gov-
ernment argues, because Esposito was given an opportunity
to object at the sentencing hearing but failed to do so.
But contrary to the government’s position, a court’s gen-
eral invitation for objections is not enough to show waiver or
forfeiture by the defendant. Id. As this court concluded in
United States v. Speed, 811 F.3d 854 (7th Cir. 2016), courts only
elicit waiver when they ask specific questions—like whether
the defendant is satisfied with the court’s treatment of their
main arguments in mitigation—not generalized inquiries
about whether the defendant was confused or had anything
else to say. Id. at 857–58; see also United States v. Mzembe, 979
F.3d 1169, 1173 (7th Cir. 2020) (“A general invitation for ob-
jections or asking, “anything else?” at the end of the hearing
is not sufficient, however, to show a waiver of challenges to
the sufficiency of an explanation.”). Here, the district judge’s
inquiry, while not completely general, was broad:
Counsel, do you have any legal objection to the
sentence I have proposed or request any further
elaboration of my reasons under Section 3553(a)
as to the length of imprisonment or as to the
length and/or conditions of supervised release
[?]
The defense counsel responded by seeking and receiving an
explanation of how the court had calculated the consecutive
and concurrent sentences to total 200 years imprisonment.
Given this colloquy, we do not find waiver or forfeiture.
No. 20-1124 5
The defense has the better of this disagreement. Esposito
argues the district court erred by determining punishment on
each individual count and then adding those terms together
to impose a total sentence. In other words, he disputes the
way the court pronounced and explained his sentence. This
is properly characterized as a procedural error. Gall v. United
States, 552 U.S. 38, 51 (2007) (“failing to adequately explain the
chosen sentence”); see also Pennington, 908 F.3d at 238 (chal-
lenging the sufficiency of the district court’s explanation of its
sentencing decision was a procedural error). Esposito claims
the district court erred by not adhering to procedure, which
as the defendant points out warrants de novo review.
For these reasons, we will review de novo Esposito’s chal-
lenge to his sentences.
B
Esposito argues the district court should have determined
his correct overall punishment and then conformed the sen-
tences on the individual counts to achieve that total. He relies
on the text of U.S.S.G. § 5G1.2, which states in relevant part:
(b) … the court shall determine the total punish-
ment and shall impose that total punishment on
each such count, except to the extent otherwise
required by law.
…
(d) If the sentence imposed on the count carrying
the highest statutory maximum is less than the
total punishment, then the sentence imposed on
one or more of the other counts shall run con-
secutively, but only to the extent necessary to
produce a combined sentence equal to the total
6 No. 20-1124
punishment. In all other respects, sentences on
all counts shall run concurrently, except to the
extent otherwise required by law.
Esposito also cites United States v. De la Torre, 327 F.3d 605
(7th Cir. 2003), in which the defendant was convicted of sev-
eral drug and money laundering counts. Initially, a
151-month sentence was imposed for the drug conspiracy and
money laundering counts, along with a 60-month concurrent
sentence for the distribution of marijuana count. Id. at 607.
Due to Apprendi v. New Jersey, 530 U.S. 466 (2000), the maxi-
mum sentence for the drug conspiracy counts became only 60
months. The defendant petitioned to change the sentence, ar-
guing that because the 151-month sentence was based on a
crime that now had a much lower statutory maximum, it was
improper to use the other counts, with lower Guidelines
ranges, to achieve a 151-month sentence. Id. at 607–08. The
court agreed and reduced the defendant’s sentence to 71
months on the money laundering counts and 60 months on
the drug counts, to be served concurrently. Id. The govern-
ment appealed.
This court reversed the district court in De la Torre. We ex-
plained that the purpose of the Guidelines is to determine the
“total punishment” appropriate for an offender. Id. 609–11.
The statutory maximum has no bearing in the calculation of
the Guidelines range for total punishment. Id. This holds true
even in cases like De la Torre, where that range is based on an
offense with a much lower statutory maximum. Id. Of course,
the sentence for any individual count cannot exceed the stat-
utory maximum for that count, but as § 5G1.2(d) of the Guide-
lines explains, the sentences for other counts can be set, con-
secutively as necessary, to achieve the total punishment. Id.
No. 20-1124 7
See also United States v. Griffith, 85 F.3d 284 (7th Cir. 1996) (con-
cerning the same issue as in De la Torre).
Esposito’s argument here is technical, and it imports a
methodology that the Guidelines do not require. If, before
delving into imposing sentences count by count, the district
court had stated that it thought the correct total punishment
was 200 years—rather than merely saying that the correct
total punishment was a de facto life sentence—then, per Es-
posito, the district court would not have erred. After its sen-
tencing remarks, the district court imposed sentences count
by count and noted that the total was 200 years. To the de-
fendant, this suggests the court did not come up with the 200-
year number first and then set the count-by-count sentences,
but did the opposite, setting the count-by-count sentences
and then adding them up to total 200 years.
The difficulty with Esposito’s argument is that before im-
posing sentence, the district court effectively determined that
Esposito’s total punishment should be life imprisonment. The
court’s sentencing comments evince that it was pronouncing
a de facto term of life imprisonment before pronouncing
prison terms on each count.
The district court expressly rejected the defendant’s
request to set his imprisonment based on his 28-year life ex-
pectancy, from which we can deduce that the court was con-
templating a longer sentence than that. The district court was
also alert to this court’s directive to be thoughtful when im-
posing life sentences when the statutes do not provide for
them. Still, the district court concluded that the defendant’s
crimes against this victim—bondage, urination, beating, rape,
rape with objects—were so horrific as not to be minimized,
8 No. 20-1124
and that Esposito’s crimes did not warrant a shorter sentence
equal to his life expectancy at the time of sentencing.
The district court further suggested that it was not con-
cerned about the effect a lengthy sentence may have on other
defendants contemplating pleading guilty, and the court
stated unequivocally that Esposito can never be around chil-
dren again. So we can conclude that the court meant to
impose what is effectively a life sentence. Indeed, at oral ar-
gument before us, the defense agreed that the district court
made it clear that it wished to impose a de facto life sentence. 1
Because the highest statutory maximum was less than life
in prison, the district court, following § 5G1.2(d), imposed
consecutive sentences as necessary to achieve an effective life
sentence. So, the district court did not commit any error here.
Esposito would have the district court apply a rigid, two-
step sequence that neither 18 U.S.C. § 3553(a) nor the Sentenc-
ing Guidelines require. The text of § 5G1.2(b) provides that
the court shall determine the total punishment “and” shall
impose that total punishment on each such count. That provi-
sion does not say “and then” or explicitly set out the calcula-
tive process the defendant contends. Rather, § 5G1.2(b) was
designed to address a circumstance different than here. This
case fits better under § 5G1.2(d), as the defendant presented
with no prior criminal history, so without any single count
expressly providing for life imprisonment, the court meted
out a term of de facto life imprisonment by means of the con-
secutive and concurrent sentences imposed here. 2
1 Oral Argument at 7:50.
2 It also bears noting that in the decision on which Esposito relies, De
la Torre, the Sentencing Guidelines had to be given much more weight
No. 20-1124 9
III
We conclude that the district court did not err when im-
posing Esposito’s sentences, so we AFFIRM.
than here. 327 F.3d at 609, 611. De la Torre predated United States v. Booker,
543 U.S. 220 (2005), which struck down the provision of the federal sen-
tencing statute that required sentences to fall within the Sentencing Guide-
lines range, along with the provision that deprived federal appeals courts
of the power to review sentences imposed outside the range. Id. at 245.