United States v. Roush

2 F.4th 616

UNITED STATES of America, Plaintiff-Appellee,

v.Hunter D. ROUSH, Defendant-Appellant.

No. 19-3217

United States Court of Appeals, Seventh Circuit.

Decided June 21, 2021

Submitted November 6, 2020^*

Katherine Virginia Boyle, Attorney, Office of the United States Attorney, Urbana Division, Urbana, IL, for Plaintiff-Appellee.

Keri A. Ambrosio, Attorney, Law Offices of Keri A. Ambrosio, P.C., Law Offices of Keri A. Ambrosio, P.C., Chicago, IL, Defendant-Appellant.

Before Rovner, Brennan, and St. Eve, Circuit Judges.

Rovner, Circuit Judge.

The defendant, Hunter D. Roush, pled guilty to transportation of child pornography, in violation of 18 U.S.C. § 2252A(a)(1) and (b)(1), and possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). The district court imposed a below-Guidelines sentence of 188 months’ imprisonment on Count I and 120 months’ imprisonment on Count II, followed by 10 years of supervised release on each count, all running concurrently. Roush now appeals, arguing that the court erred in failing to properly identify the Guidelines range and that the court erred in failing to consider his primary arguments in mitigation before imposing the sentence. Neither argument has merit.

First, Roush argues that the court failed to properly calculate the Guidelines range. Specifically, he alleges that the court imposed the 188-month term of incarceration and 10-year supervised release without ruling on the issue of acceptance of responsibility and without making a determination of the appropriate Guidelines range at sentencing. "The district court has the ultimate responsibility to ensure that the Guidelines range it considers is correct, and the ‘[f]ailure to calculate the correct Guidelines range constitutes procedural error.’ " Rosales-Mireles v. United States , ––– U.S. ––––, 138 S. Ct. 1897, 1904, 201 L.Ed.2d 376 (2018), quoting Peugh v. United States , 569 U.S. 530, 537, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013) ; United States v. Miller , 829 F.3d 519, 527 (7th Cir. 2016) (recognizing that in considering such a procedural challenge, we must ensure that the district court properly calculated the Guidelines range, considered the 18 U.S.C. § 3553(a) factors, and adequately explained the sentence.) Because Roush did not raise the alleged procedural error in the district court, we review the claim for plain error. Rosales-Mireles , 138 S. Ct. at 1904. Under that standard, we may remedy the error if it is plain, it was not intentionally relinquished or abandoned, and it affected the defendant's substantial rights. Id . Once those hurdles are met, we have the discretion to correct the forfeited error if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id . at 1905.

Under that plain error standard, or any standard, the claim cannot succeed because the record does not support the claim of error. A review of the sentencing transcript reveals that the court recognized the proper Guidelines range, which is confirmed in the court's post-sentencing statement of reasons, and awarded the two-level deduction for acceptance of responsibility, which was the only deduction available to Roush on that basis. The court at the sentencing hearing first adopted the factual findings of the presentence report as its own, subject to ruling on any objections of Roush. The court then identified the relevant increases and deductions from the base amount. It held that Roush's base offense level was 22, and that the following increases were applicable: 2-level increase because the offense involved images of minor children as young as 5 years old; 5-level increase because Roush distributed child pornography in exchange for valuable consideration but not for pecuniary gain; 4-level increase because Roush possessed images that portrayed sadistic conduct or other depictions of violence; and a 5-level increase because Roush was responsible for possessing at least 21 video files which represent 1,575 images of child pornography. The court noted that the offense level was thereby increased to 38.

The court then held that "[a] two-level deduction for acceptance of responsibility brings it back down to 36," and asked the government whether it was going to move for an additional one-level deduction for acceptance of responsibility. Sent. Tr. Doc. 18 at 7. Unlike the 2-level deduction, that additional one-level deduction for acceptance of responsibility can be provided only upon motion by the government. United States v. Nurek , 578 F.3d 618, 624 (7th Cir. 2009) ; United States v. Deberry , 576 F.3d 708, 710 (7th Cir. 2009). The government responded that it believed that at least one of the defendant's objections was frivolous, and depending upon the court's ruling as to the distribution enhancement in particular, it would not move for that additional reduction. In light of that response, the court stated "[s]o it stands at 36 now, and after I rule, I'll determine whether he may get the 35, if the Government so moves. Sent. Tr. Doc. 18 at 8.

After considering and denying Roush's objections to specific enhancements, the court reiterated that it adopted the fact findings in the PSR. The government then restated its earlier position that it did not believe that Roush should be given the acceptance of responsibility credit. In light of that position, the court then asked a question of Tom Brown from Probation to clarify the range that would then apply: "I do have a question. Mr. Brown, if the Government is not moving for the one-level deduction, that means the defendant has an offense level of 36. Does that change the Guidelines at all?" Id . at 27. Brown responded that the Guideline range for the offense level of 36 would then be 210 to 262 months, and a statutory maximum of 120 months for Count II. Id . at 28. The government argued for 235 months, Roush spoke separately himself and requested 120 months, and the court departed downward from the Guidelines and imposed 188 months.

Given that record, there is no factual support for the claim that the court failed to calculate the Guidelines range, or that the court failed to rule on the issue of acceptance of responsibility. As to acceptance of responsibility, the court in fact granted Roush a two-level deduction for acceptance of responsibility, and the additional one-level deduction was not before the court because it can be awarded only if the government requests it and the government chose not to do so. Because that deduction was unobtainable absent a motion by the government, there was nothing for the court to rule on with respect to that deduction and therefore the argument that the court failed to rule on acceptance of responsibility is unfounded. Furthermore, the court properly recognized the offense level of 36 applied, and clarified on the record the Guidelines range of 210 to 262 months applicable to Roush given his offense level and criminal history. And that was confirmed in its subsequently-filed statement of reasons, in which the court reiterated that the Guidelines range for Roush was 210 to 262 months’ imprisonment. Roush does not claim that the offense level or Guidelines range so identified was incorrect. Accordingly, Roush's claim of procedural error is unfounded.

The remaining challenge by Roush is that the court erred in failing to consider Roush's primary arguments presented in mitigation when it failed to consider his "comprehensive allocution" before determining his sentence. Because Roush failed to object in the district court, we review for plain error, which is satisfied only for errors that are plain and affected the defendant's substantial rights, and for which we may reverse, in our discretion, if the error seriously affects the fairness, integrity or public reputation of judicial proceedings. United States v. Luepke , 495 F.3d 443, 448 (7th Cir. 2007).

Roush argues that he "spoke three times at sentencing:" first, in his testimony at sentencing, second, in his statement to the court prior to sentencing, and third, in a statement to the court after sentencing. He asserts that the court failed to consider the arguments in mitigation in that final statement, and the court did not reconsider the sentence in light of those arguments.

Roush testified at length in the sentencing hearing and affirmed that the testimony represented his "position in terms of how [he] want[s] the court to sentence [him]." Sent. Tr. Doc. 18 at 20. Prior to determining the sentence, the court invited counsel for the government and the defendant to present any arguments. Following their statements, the court turned to Roush and declared: "Mr. Roush, now is your opportunity to speak. Do you wish to be heard?" Id . at 31. Roush responded in the affirmative, and the court stated "Please proceed." Id . Roush used that opportunity to argue for a sentence of a maximum of 120 months, noting it would give him enough time to obtain schooling and counseling while not impeding his ability to rehabilitate back into society upon release. Following that statement and a sidebar, the court took a 5-minute recess. Upon its return, the court proceeded to apply the § 3553 factors and concluded that a below-Guidelines sentence of 188 months on Count I and 120 months on Count II, served concurrently, was appropriate.

After setting forth the sentence and conditions, the court asked defense counsel if it had addressed all matters in mitigation, and defense counsel responded that the court had done so. The court then asked Roush if he had any questions. Roush first responded that he...