Argued February 28, 2013
Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 10 cr 50031-1—Frederick J. Kapala, Judge.
Before Manion, Kanne, and Tinder, Circuit Judges.
Kanne, Circuit Judge.
For more than three years, John V. Nania inflicted lasting torment on several young girls: he sexually abused them and documented that abuse in pornographic images. When authorities discovered Nania's appalling actions, they arrested him and charged him with multiple crimes. In Illinois state court, Nania was convicted for the sexual abuse itself. In federal court, he pled guilty to producing child pornography. At his federal sentencing hearing, Nania argued that the conduct involved in these state and federal offenses overlapped to such an extent that the sentences should run concurrently. The district court disagreed, however, and ordered that Nania serve his federal prison term consecutively to his state sentences. Nania now challenges that decision. After review, we find no error and affirm Nania's sentence.
Cases involving the sexual abuse of children require care and discretion. We understand that need, and, in light of it, have left our descriptions vague when possible. Specific details are included only as needed to resolve the case.
In January 2009, A.M., a fourteen-year-old girl from Rockford, Illinois, told a worker at a children's center that she had been sexually abused for the past three years. (Presentence Investigation Report, "PSR, " at 3.) The aggressor was John V. Nania. A.M. knew Nania through his twin daughters, whom A.M. had babysat for several years. (Id.) The children's center reported A.M.'s abuse to the Rockford Police Department, and investigations began. (Id.) Within two weeks, officers searched Nania's home and recovered a computer containing many images of child pornography. (Id.) The police also found a VHS cassette that depicted Nania sexually abusing his stepdaughter, S.M. (Id. at 5-6.) When investigators subsequently interviewed S.M., she explained that Nania had sexually exploited her for years and that she had tried to commit suicide to escape the abuse. (Id. At 6.) As investigations continued, several more victims emerged. (Id.)
Eventually, these discoveries led to Nania's arrest. He was later convicted multiple times in Illinois state court. (Id. at 12-14.) First, on December 8, 2009, a jury found Nania guilty of three counts of criminal sexual assault (Counts Four through Six in the state proceedings). (Id. at 12-13.) All three counts related to Nania's abuse of S.M., his stepdaughter, and included a count for penetrating her vaginally when she was under the age of eighteen (Count Four). (Id. at 13.) For each count, Nania received a separate sentence of fifteen years in custody and two years of supervised release. (Id. at 12.) These sentences would run consecutively, for a total of forty-five years in custody and six years of supervised release. (Id.)
Then, on June 25, 2010, at the conclusion of a bench trial, an Illinois state judge found Nania guilty of three more crimes: one count of predatory criminal sexual assault of a child and two counts of aggravated criminal sexual abuse (Counts One through Three in the state proceedings). (Id.) These convictions related to Nania's abuse of A.M., his daughters' babysitter. (Id. at 12-13.) Important for our purposes, none of these counts charged Nania with vaginally penetrating A.M. (Id.) Nania received another twenty years in prison for the predatory criminal sexual assault count and two seven-year sentences for the aggravated criminal sexual abuse counts. (Id. at 12.) The seven-year terms would run concurrently to each other but consecutively to the twenty-year sentence. (Id.) Thus, these crimes added another twenty-seven years in state prison to Nania's initial, forty-five-year sentence.
After securing these convictions, the State of Illinois dropped its remaining charges against Nania. (Id.) His aggregate sentence for the state offenses totaled seventy-two years. Furthermore, Illinois law limits the amount of credit Nania can receive for good behavior to approximately 15% of his sentence. See 730 ILCS 5/3-6-3(a)(2)(ii); (see also Appellant's Br. at 6). Based on that figure, Nania is projected to be released from state prison when he is 103 years old. (Appellant's Br. at 6.)
Despite these formidable state sentences, law enforcement authorities were not finished with Nania. Federal prosecutors had also taken up his case. In May 2009, a federal grand jury indicted Nania for two counts of producing child pornography and two counts of possessing child pornography. (R. 30-2 at 8-11.) On December 21, 2011, Nania pled guilty to Count Two of the indictment, which charged him with violating 18 U.S.C. § 2251(a) (producing child pornography). (Id. at 304.) More specifically, Count Two charged Nania with "employ[ing], us[ing], persuad[ing], induc[ing], entic[ing] and coerc[ing] [A.M.] to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, . . . which . . . was produced using materials that had been mailed, shipped, and transported in interstate commerce." (Id. at 9.) The charge was based on a specific image Nania had produced, referred to as "Digital Image 2." (Id.) This picture depicted Nania vaginally penetrating A.M. Nania signed a written plea agreement, (R. 30-2 at 305-22), and the government later dismissed the remaining counts against him, (id. at 372).
The district court held Nania's sentencing hearing on April 16, 2012. (Id. at 370.) During the hearing, the court adopted the factual findings of the PSR. (R. 31 at 31.) The court also adopted the PSR's calculations for the sentence recommended by the U.S. Sentencing Guidelines. (Id. at 32.) In determining that recommendation, the PSR took into account Nania's exploitation of four victims: A.M., S.M., and two others not mentioned in the state court proceedings. (PSR at 7-11.) Ultimately, the PSR concluded that Nania's total offense level was 43, (id. at 11), for which a life sentence was recommended, (id. at 26). But 18 U.S.C. § 2251 has a statutorily imposed maximum sentence of 360 months. 18 U.S.C. § 2251(e). As a result, that maximum became the recommended sentence. See U.S.S.G. § 5G1.1(a). The district court departed downward from the recommendation and sentenced Nania to 330 months in prison. (R. 31 at 47.)
The last remaining question was whether that federal sentence should run concurrently or consecutively to Nania's state sentences. Nania argued that U.S.S.G. § 5G1.3(b) applied, in which case the Sentencing Guidelines would have recommended that Nania's federal sentence run concurrently with his state sentences. The district court, however, agreed with the government that § 5G1.3(c) and Application Note 3(D) of that provision applied, which meant the Guidelines made no explicit recommendation about concurrent or consecutive sentences. Rather, the Guidelines provided a list of factors for the district court to weigh when deciding whether to give a concurrent sentence. Taking those considerations into account, the district court ordered Nania to serve his federal sentence consecutively to his state sentences. (R. 31 at 52.) Disagreeing with that conclusion, Nania timely appealed his sentence on April 26, 2012. (R. 30-2 at 376.)
Fair, appropriate sentences for criminal defendants—this goal ranks among the central purposes of the U.S. Sentencing Guidelines. U.S.S.G. Ch. 1, Pt. A at 2. Today, we consider one aspect of that multi-faceted mission: discouraging sentences that punish defendants twice for the same conduct. The Guidelines institute this policy in part through U.S.S.G. § 5G1.3, which applies to defendants who face an already existing, but not yet completed, prison term. If the conduct that led to the undischarged term sufficiently overlaps with the conduct for the current offense, then the Guidelines recommend that the prison terms run concurrently.
That potential recommendation is the precise issue Nania raises. First, he argues that the district court incorrectly decided which subsection of § 5G1.3 applied. If so, then the court procedurally erred by misunderstanding whether the Guidelines recommended a concurrent sentence. Alternatively, Nania argues that, even if the district court correctly determined the applicable provision, the court's decision to impose the sentences consecutively was nonetheless substantively unreasonable. We address each argument below, although under two different standards. We review the procedural challenge de novo but review the substantive challenge for abuse of discretion. United States v. Vallar, 635 F.3d 271, 277-78 (7th Cir. 2011). In the end, we find neither of Nania's arguments convincing.
A. Procedural Error
Nania and the government disagree over which subsection of § 5G1.3 applies to this case. In particular, the debate centers on whether subsection (b) or (c) controls. According to the government, the correct answer is subsection (c), which gives the district court broad discretion. When § 5G1.3(c) applies, a court can order a defendant's multiple prison terms "to run concurrently, partially concurrently, or consecutively"—essentially in any format the court feels "achieve[s] a reasonable punishment for the instant offense." U.S.S.G. § 5G1.3(c). The Guidelines direct the court to a set of factors it should assess in making that decision, but the Guidelines provide no further guidance. See id. & cmt. n.3(A).
In contrast, subsection (b) creates a subclass of cases in which the Guidelines affirmatively recommend the format of the defendant's sentence. Specifically, subsection (b) advises courts that a defendant's prior, undischarged prison term should run concurrently with the term for the instant offense, if the conduct behind the two terms sufficiently overlaps. Prison sentences meet this standard when the undischarged term has "resulted from another offense that is relevant conduct to the instant offense of conviction, " and that relevant conduct "was the basis for an increase in the offense level" for the offense of conviction. U.S.S.G. § 5G1.3(b). Nania argues that his prison terms satisfied these criteria and were thus subject to a recommended concurrent sentence through § 5G1.3(b).
Of course, given the advisory nature of the Sentencing Guidelines, a district court has no obligation to impose a concurrent sentence, even if § 5G1.3(b) applies. United States v. Campbell, 617 F.3d 958, 960 (7th Cir. 2010); see also 18 U.S.C. § 3584. It is merely a recommendation. That said, a district judge must still consider what the Guidelines suggest. United States v. Garner, 454 F.3d 743, 747 (7th Cir. 2006). For that reason, courts must correctly determine whether the Guidelines recommend concurrent sentences. See, e.g., United States v. Kieffer, 681 F.3d 1143, 1167-68 (10th Cir. 2012); United States v. Armstead, 552 F.3d 769, 784 (9th Cir. 2008); United States v. Broadnax, 536 F.3d 695, 700-02 (7th Cir. 2008). Failure to do so results in procedural error. See, e.g., Kieffer, 681 F.3d at 1167-68; Armstead, 552 F.3d at 784; Broadnax, 536 F.3d at 700-02. Thus, to decide whether the district court followed sound procedure in this case, we must first figure out whether it correctly determined the applicable provision of § 5G1.3.
1. Legal standards for U.S.S.G. § 5G1.3
The First Circuit has aptly described § 5G1.3 as "a tightly imbricated framework." United States v. Carrasco-de-Jesús, 589 F.3d 22, 27 (1st Cir. 2009). This case requires delving deeply into that complex structure. Consequently, our task demands familiarity with many terms of art. To ensure readers do not miss a step, we think it best to begin with a brief review of how the Sentencing Guidelines operate.
a. General review of the Sentencing Guidelines
When district judges consult the Guidelines, they come away with recommended punishments for criminals. The central recommendation is about the sentence's length. The Guidelines suggest a range of possible sentences—referred to as the "Guidelines range"—and recommend that the imposed sentence fall within it. In each case, the "Guidelines range" is determined using a grid that takes into account two variables: the defendant's criminal history and the "offense level" of the current crime. See U.S.S.G. Sentencing Table. The second variable—offense level—primarily concerns us here.
Calculating a defendant's offense level begins simply enough: the U.S. Sentencing Commission has assigned each crime a "base offense level" between one and forty-three. U.S. Sentencing Commission, An Overview of the Federal Sentencing Guidelines 1, http://www.ussc.gov/ About_the_Commission/Overview_of_the_USSC/ Overview_Federal_Sentencing_Guidelines.pdf (last visited July 23, 2013). This number reflects the "seriousness" of the crime. Id. Then, things get more complicated. The offense level will increase or decrease based upon individual circumstances. Trespassing, for instance, has a base offense level of four, but two more points are added if the defendant possessed a dangerous weapon while committing the crime. U.S.S.G. § 2B2.3.
When determining whether to adjust a defendant's offense level, a court examines what the Guidelines call "relevant conduct." See U.S.S.G. § 1B1.3. That is, when there is "relevant conduct" that meets the requirements for an adjusted offense level, the court must make that adjustment—strictly adhering to the steps outlined by the Guidelines is mandatory, unless otherwise specified. United States v. Vizcarra, 668 F.3d 516, 520 (7th Cir. 2012); see also U.S.S.G. § 1B1.3(a) (the offense level of the defendant "shall be determined on the basis of [relevant conduct]") (emphasis added). The Guidelines, however, use the term "relevant conduct" to encompass a broader swath of conduct than the term connotes in everyday parlance. For Guidelines purposes, "relevant conduct" includes "all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant." ...