Argued September 16, 2013
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:10-CR-01013-1 -- Ronald A. Gú zman, Judge.
For United States of America, Plaintiff - Appellee: Yasmin Best, Attorney, Office of The United States Attorney, Chicago, IL.
For John Mclaughlin, also known as: SMOKEY, also known as: MRMACLLDOO, also known as: GOODDADDY, also know as: CAPTAIN JACK, Defendant - Appellant: Mark Howard Allenbaugh, Attorney, Law Offices of Mark H. Allenbaugh, Costa Mesa, CA.
Before KANNE, ROVNER, and WILLIAMS, Circuit Judges.
Rovner, Circuit Judge.
John McLaughlin pled guilty to one count of transporting child pornography, in violation of 18 U.S.C. § 2252A(a)(1). He was sentenced to 130 months' imprisonment, a fine of $50,000, and 20 years of supervised release. He challenges his sentence in several respects. We affirm.
Sometime prior to June 2009, John McLaughlin began visiting an internet chat room where participants viewed and shared child pornography. Through his activity on the internet, McLaughlin accumulated a large collection of child pornography that included photographs of adults sexually abusing pubescent and prepubescent minors, children engaged in sexual acts with animals, and children engaged in sexual acts with other children. A December 2009 search warrant of McLaughlin's home resulted in a seizure of his computer, an external hard drive and several dozen DVDs, collectively containing more than 150 videos and more than 500 photographs of child pornography.
McLaughlin was charged with four counts of transporting child pornography,
in violation of 18 U.S.C. § 2252A(a)(1); and one count of possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). The government also sought the forfeiture of McLaughlin's computer tower, external hard drive and DVDs, pursuant to 18 U.S.C. § 2253. McLaughlin pled guilty to one count of transporting child pornography and agreed to the forfeiture. In the Presentence Investigation Report (" PSR" ), a probation officer determined that the guidelines range was 151 to 188 months' imprisonment, based on a total offense level of 34 and a criminal history category of I. The PSR set forth a base offense level of 22, pursuant to section 2G2.2(a)(2) of the guidelines. To that base offense level, the PSR added: (1) two levels under section 2G2.2(b)(2) because the material involved prepubescent minors and minors who had not yet attained the age of twelve years; (2) two levels under section 2G2.2(b)(3)(F) because the offense involved distribution of the material; (3) four levels because the " offense involved material that portrays sadistic or masochistic conduct or other depictions of violence," pursuant to section 2G2.2(b)(4); (4) two levels under section 2G2.2(b)(6) for the use of a computer for the transmission of the material; and (5) five levels under section 2G2.2(b)(7)(D), because the offense involved more than 600 images. The PSR also afforded a three-level reduction for acceptance of responsibility under section 3E1.1.
Finally, the PSR contained an extensive analysis of McLaughlin's finances, calculating a net worth of more than $135,000 in cash, annuities and retirement accounts. The PSR concluded that McLaughlin possessed " the financial ability to make an immediate payment towards restitution and/or a fine." R. 64, at 18. The PSR also noted that the statutory maximum for a fine was $250,000 pursuant to 18 U.S.C. § 3571, and that the guidelines range was $17,500 to $175,000. The PSR indicated that the court " shall impose a fine in all cases, except where the defendant establishes that he is unable to pay and is not likely to become able to pay any fine," citing guidelines section 5E1.2(a). The PSR listed some of the factors that the court should consider in determining the amount of a fine, including the cost of confinement, probation and supervised release. See U.S.S.G. § 5E1.2(d). The PSR included the most recent monthly costs for imprisonment, community confinement and supervision as set forth by the Administrative Office of the United States Courts. R. 64, at 20.
In the district court, McLaughlin objected to the four-level enhancement under section 2G2.2(b)(4) for material that portrays sadistic or masochistic conduct or other depictions of violence. He also contended that the guidelines for child pornography offenses are generally arbitrary and capricious, that many courts have recognized that section 2G2.2 is flawed, and that these courts often sentence defendants significantly below the guidelines range because of these flaws. He maintained that he would be unusually susceptible to abuse by other inmates because of the nature of his conviction, and he urged the court to adjust his sentence downward on that basis as well. He argued that the statutory minimum of sixty months was adequate to address the seriousness of his offense as a viewer rather than a producer of child pornography. He opposed an award of restitution for ...