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United States v. Hoffman

United States Court of Appeals, Seventh Circuit

February 8, 2017

United States of America, Plaintiff-Appellee,
Kevin A. Hoffman, also known as Kevin Hoffman, Defendant-Appellant.

          Argued November 10, 2016

         Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 13-cr-00134 - Robert L. Miller, Jr., Judge.

          Before Ripple, Manion, and Rovner, Circuit Judges.

          Manion, Circuit Judge.

         For conduct arising out of one day's sexual abuse, Kevin Hoffman was convicted after a two-day federal jury trial of one count of exploitation of a child and one count of possession of child pornography in interstate commerce, and faced a sentence of up to thirty years in prison. While his sentence was pending, he was convicted in state court of sexual abuse of the same child over a period of eighteen months, and faced a sentence of up to fifty years in state prison. This case involves the discretion of a federal district court judge under U.S.S.G. § 5G1.3 to impose a concurrent or consecutive sentence, or to decline to impose either, when a subsequent state sentence for relevant conduct is anticipated. Hoffman argues that the plain language of the Sentencing Guidelines requires a district judge to impose a concurrent sentence in such a situation. Because the Guidelines are advisory, and because U.S.S.G. § 5G1.3 is inapplicable in this case, we affirm the decision below.

         I. Background

         Hoffman's federal conviction arises out of events occurring on one day, September 5, 2013. On that day, Hoffman was at home in Michigan City, Indiana. He lived there with his girlfriend, Shannon, her sister-in-law, Nina, and Nina's two young sons. Shannon had two daughters who also lived in the house: Hannah, 18, and the victim, Jane Doe, 6. Finally, the primary witness, Ashley Randle-El, 23, was a friend of Hannah's and also lived in the house.

         On September 5, 2013, Hoffman and Randle-El were caring for Jane Doe and Nina's two young sons. All five went to the back yard patio at some point during the day. Later, Hoffman and Jane Doe went inside. Shortly thereafter, Randle-El and Nina's two boys returned to the house, and Randle-El witnessed Jane Doe return from Hoffman's bedroom to the kitchen. Randle-El walked to the bedroom and asked Hoffman to borrow his cell phone, which he gave to her. She returned to the kitchen in order to place a call.

         When she opened the phone, she saw a photograph of Jane Doe, nude, in what the District Court characterized as a "blatantly sexual pose." Screaming, Randle-El asked Jane Doe: "What's going on?" Jane Doe replied: "My dad took the x-rays, " and Jane Doe ran back towards the bedroom. Hoffman came out, seized the phone, and deleted the photographs. Randle-El took the children outside, and when Jane Doe's mother, Hoffman's girlfriend Shannon, returned home, they found no photos, and notified police. Pursuant to a search warrant, Michigan City police seized Hoffman's cell phone and a forensic analyst discovered ten deleted images of Jane Doe naked in various postures. Hoffman was arrested on November 26, 2013, and he has remained in custody since. A grand jury returned an indictment against Hoffman on December 11, 2013, on one count of violating 18 U.S.C. § 2251(a), sexual exploitation of a child, and one count of violating 18 U.S.C. § 2252(a)(4)(B), possession of child pornography in interstate commerce.

         As noted by the district court and affirmed by the government at oral argument, the case was tried "as a child pornography case" related to the events of September 5, 2013. However, during the course of the trial the jury did hear testimony from Jane Doe which related to her grooming and abuse by Hoffman over a period of time. Specifically, Jane Doe related that she and Hoffman had "practice[d] having sex ... lots, multiple times." Further, she testified that Hoffman's hands would shake and that he told her he was a diabetic and would die without oral sex, which she would then perform on him. This abuse, however, was not what Hoffman was charged with: he was charged with, and convicted of, one count of sexual exploitation of a child and one child pornography count, both related to the events of September 5, 2013.

         Following Hoffman's first sentencing hearing, the district court on January 5, 2015, increased Hoffman's base offense level pursuant to U.S.S.G. § 2G2.1 (sexual exploitation of a minor) and U.S.S.G. § 4B1.5(b) (repeat and dangerous sex offender against minors). The maximum allowable sentence under the statutes was 30 years, or 360 months. This fell below the advisory guideline range of life. Therefore, the advisory range was limited to 360 months. The government agreed that 360 months was reasonable. Hoffman's attorneys, for their part, recommended 17 years, which was 2 years above the statutory minimum of 15 years. After applying the various factors set out in 18 U.S.C. § 3553, the district judge sentenced Hoffman to a term of 300 months' imprisonment, and ten years of supervised release, with various conditions upon that release. He noted that the single count of production of child pornography would carry with it a minimum mandatory sentence of 15 years, so that the other aspects of the case demanded more than simply the two years requested by defense counsel. Accordingly, he imposed a 25-year sentence on Hoffman solely for the production count, merging the possession count with it.

         Following his first sentencing, Hoffman filed a notice of appeal. During the pendency of that appeal, this court decided both United States v. Thompson, 777 F.3d 368 (7th Cir. 2015), and United States v. Kappes, 782 F.3d 828 (7th Cir. 2015), which bore on the validity of several conditions of supervised release imposed on Hoffman at his initial sentencing. As a result, on October 7, 2015, the parties filed a joint motion to remand for full resentencing, which this court granted the next day. Hoffman was resentenced in district court on March 14, 2016, again for 25 years, in the order now on appeal before this court.

         Also during the pendency of Hoffman's appeal from his first sentencing, parallel proceedings in state court were developing related to his 18-month period of abusing Jane Doe. Shortly before his federal resentencing, an Indiana jury convicted Hoffman of child molestation, a charge for which he faced a sentencing range of 20 to 50 years. Facing this additional sentence, Hoffman argued at resentencing in the federal case that because his sentence was enhanced under U.S.S.G. § 4B1.5(b)(1), for "engage[ing] in a pattern of activity involving prohibited sexual conduct, " he was entitled to a concurrent sentence under U.S.S.G. § 5G1.3(c). That section provides:

If subsection (a) [the crime was committed while incarcerated] does not apply, and a state term of imprisonment is anticipated to result from another offense that is relevant conduct to the instant offense of conviction under the provisions of subsections (a)(1), (a)(2), or (a)(3) of ยง1B1.3 (Relevant Conduct), the sentence for the ...

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