United States v. Stinefast, No. 12-2435 (7th Cir. 2013)

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Stinefast delivered a compact disc full of child pornography to an FBI informant; he was arrested and his home was searched. Agents discovered Stinefast’s collection of more than 190,000 images of child pornography, including images depicting sexual molestation of infants. Stinefast pled guilty to distributing child pornography, 18 U.S.C. 2252A(a)(2)(A) and received an above‐guideline sentence of 216 months. The Seventh Circuit affirmed the sentence, rejecting arguments that: during the sentencing hearing the prosecutor improperly referred to inadmissible and potentially incriminating statements Stinefast made to the government’s psychiatric expert, which led to his unreasonably lengthy prison term; that the court erred by failing to address an argument that Stinefast’s psychological disorders stemming from his own history of sexual abuse limited his ability to refrain from engaging in child‐pornography; and that the court imposed an unreasonably high sentence.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 12 2435 UNITED STATES OF AMERICA, Plaintiff Appellee, v. COREY STINEFAST, Defendant Appellant. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:09 cr 768 2 Amy J. St. Eve, Judge. ____________________ ARGUED APRIL 10, 2013 DECIDED AUGUST 1, 2013 ____________________ Before POSNER, WOOD, and WILLIAMS, Circuit Judges. WILLIAMS, Circuit Judge. After delivering a compact disc full of child pornography to an FBI informant, Corey Stine fast was arrested and his home was searched. When agents completed the search, they discovered Stinefast s collection of over 190,000 images of child pornography, including im ages depicting the sexual molestation of infants. Stinefast was eventually charged with distributing child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). He pled guilty to 2 No. 12 2435 the charge and received an above guideline sentence of 216 months. On appeal, Stinefast presents three challenges to his sen tence. He first contends that during his sentencing hearing the prosecutor improperly referred to inadmissible and po tentially incriminating statements Stinefast purportedly made to the government s psychiatric expert and that this comment led to his unreasonably lengthy prison term. We disagree. The prosecutor s remark did not rise to the level of impropriety necessary to constitute plain error and, even if it did, Stinefast failed to show that it influenced the district court s sentencing decision. Stinefast next argues that the dis trict court procedurally erred by failing to address the ar gument that his psychological disorders stemming from his own history of sexual abuse limited his ability to refrain from engaging in child pornography related activity. We see no error. The district court s brief mention of the issue was sufficient given the minimal evidence Stinefast presented to substantiate his diminished capacity argument. Finally, Stinefast asserts that the district court imposed an unreason ably high sentence. We think the court arrived at a reasona ble sentence based on its thorough examination of the rele vant sentencing factors and specific aspects of Stinefast s background such as the vast amount of child pornography in his possession. As none of Stinefast s issues have merit, we affirm. I. BACKGROUND In May 2009, federal agents began working with a coop erating individual ( CI ) after discovering a large amount of child pornography during a search of his residence. Hoping to secure favorable treatment from the government, the CI No. 12 2435 3 informed agents that he was part of a group who met in per son and on the internet to view and trade child pornography. The CI identified Corey Stinefast and his co defendant Jose Garcia as the other members of this group. On August 25, 2009, the CI, equipped with a hidden re cording device, met up with Stinefast and Garcia at Six Flags Great America in Gurnee, Illinois. The three men wandered around the park for several hours, stopping periodically to allow Stinefast to surreptitiously record and photograph young boys. Eventually, the group left the park and stopped at Stinefast s car in the parking lot. Stinefast retrieved a disc from his car and handed it to Garcia. Garcia then gave the disc to the CI who promptly delivered it to federal agents. The disc Stinefast provided contained numerous images and videos of child pornography. Not long after the theme park meeting, FBI agents arrest ed Stinefast at his home and executed a search warrant. Dur ing the search, agents discovered in excess of 190,000 images and hundreds of videos depicting child pornography. Stine fast s collection included, among other items, images depict ing the sexual molestation of an infant. The government eventually charged Stinefast with one count of distributing child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). On March 14, 2011, Stinefast notified the government of his intent to present expert evidence relating to a mental dis ease bearing on the issue of his guilt under Federal Rule of Criminal Procedure 12.2(b). In response, the government filed a motion to have its own expert examine Stinefast and evaluate his mental condition. In an agreed order, the district court granted the government s motion and set forth the conditions under which the examination would take place. 4 No. 12 2435 Soon after the government s expert completed her exam ination, Stinefast filed a notice that he had withdrawn his mental disease defense along with a motion to preclude the government s expert from communicating with the govern ment, the court, or anyone else about her examination of Stinefast. The government asked the district court to deny the motion because the relief sought might interfere with the expert s mandatory reporting obligations under Illinois law to the extent such obligations were triggered during Stine fast s examination. See, e.g., 325 ILCS 5/4 (requiring psychia trists with reasonable cause to believe a child known to them in their professional capacity may be suffering from abuse to file a report with Illinois Department of Children and Family Services). In reply, Stinefast contended that the government s reference to its expert s putative reporting obligations amounted to a disclosure that Stinefast had admitted abus ing children during his examination. Stinefast contended that such disclosure was prohibited under both the Fifth Amendment and Federal Rule of Criminal Procedure 12.2(c)(4). The district court granted Stinefast s motion in large part and later ordered the government s expert to refrain from distributing her report to the court or to the Assistant United States Attorneys assigned to Stinefast s case. The court did not directly address whether the government s arguments constituted improper disclosures of information from Stine fast s examination in violation of Rule 12.2(c)(4). When Stine fast s counsel suggested that the court may have difficulty ignoring the government s implication that Stinefast had re vealed that he sexually abused children during his examina tion, the court noted that [w]ell, I can certainly distinguish between what is admissible and what is not admissible. No. 12 2435 5 Stinefast eventually pled guilty to distributing child pornog raphy. At sentencing, Stinefast maintained that he had dimin ished capacity at the time he committed the offense that ren dered him less culpable than an ordinary offender. The sources of Stinefast s purported diminished capacity were his low IQ and various psychological disorders (e.g., depres sion, anxiety, and post traumatic stress disorder) that he claimed were the result of sexual abuse he suffered at the hands of his older brother. Stinefast relied upon a psycholog ical evaluation from the year 2000 that documented his abuse accusations as well as diagnoses for his mental health ailments. According to Stinefast, his psychological disorders and lack of intelligence rendered him more amenable to dis tributing child pornography and militated in favor of a less er sentence in his case. In its sentencing presentation, the government highlight ed Stinefast s criminal history, inability to refrain from crimi nal behavior, and the seriousness of his offense in requesting a sentence above the range recommended by the Guidelines. In particular, the government focused on Stinefast s 2000 conviction in Wisconsin state court for two counts of causing a child to expose his genitals. According to the complaint in that case, Stinefast confronted two young boys in a public washroom and pulled down their swimsuits to view their genitals. The Wisconsin court sentenced Stinefast to a brief period of incarceration and ordered him to complete sex of fender treatment. The government argued that Stinefast s in ability to refrain from sexually exploiting children despite his brief jail time and treatment suggested that a lengthy prison term was necessary to specifically deter Stinefast from 6 No. 12 2435 future offenses. Prosecutors also highlighted the volume of child pornography Stinefast had amassed in support of its request for a higher sentence. At the conclusion of its argument, the government re ferred to the earlier dispute regarding Stinefast s statements during his psychological evaluation by the government s ex pert: [Government]: And one last thing The Court: Yes. [Government]: for just the record, your Honor. The Court: Yes. [Government]: Months and months and months ago, there was discussion held on the record regarding a psychosexual evaluation of Mr. Stinefast by the gov ernment. And as we discussed on the record months and months ago, the Court, as you acknowledged, is fully capable of hearing some things and considering them and deciding not to consider them. And I wanted to put forth on the record today that anything the Court heard during those hearings re garding for instance, the government s obligation to make certain disclosures you are not considering as part of your sentence. The Court: I am not considering those as part of my sentence. The district court sentenced Stinefast to 216 months im prisonment, a term of incarceration more than five years greater than the top of his Guidelines range of 121 to 151 months. In justifying its above guidelines sentence, the court No. 12 2435 7 cited the amount of child pornography Stinefast had accu mulated, the particularly disturbing nature of some of the images, and Stinefast s continued sexual exploitation of chil dren despite an earlier run in with the criminal justice sys tem. The court also rejected Stinefast s argument that he de served a reduced sentence because of psychological trauma caused by the sexual abuse he endured during his child hood. Stinefast now appeals. II. ANALYSIS Stinefast presents a number of challenges related to his sentence. With regard to the sentencing hearing, Stinefast contends that the prosecution acted improperly by remind ing the court that Stinefast may have revealed prior acts of child abuse during the examination by the government s ex pert. Stinefast also maintains that the district court commit ted a procedural sentencing error by failing to consider his diminished capacity argument. Furthermore, Stinefast con tends that the district court s above guideline sentence was substantively unreasonable. A. No Plain Error Resulted from Prosecutor s Com ments at Sentencing Stinefast argues that the prosecutor engaged in miscon duct during the sentencing hearing by referring to Stinefast s purported damaging statements to the government s expert. When a defendant argues that a prosecutor made an im proper comment for the first time on appeal, we review the claim under the plain error standard. United States v. Turner, 651 F.3d 743, 751 (7th Cir. 2011). To succeed under the plain error standard, Stinefast first must show that the prosecu tor s comments were obviously or clearly improper. United 8 No. 12 2435 States v. Jones, 600 F.3d 847, 856 (7th Cir. 2010). If the remarks were blatantly improper, Stinefast must also demonstrate that the statements prejudiced him. United States v. Washing ton, 417 F.3d 780, 786 (7th Cir. 2005). We do not think the prosecutor s comment was clearly improper. Stinefast describes the prosecutor s remark as an attempt to inflame the judge s passions by referring to Stine fast s inadmissible statements to the government s expert re garding prior instances of molestation. The comment seems better construed, however, as an attempt to protect the rec ord on appeal by asking the court to confirm that it did not consider the government s representations regarding this sensitive issue when imposing sentence. Given that the comments at issue are ambiguous at best, we are not inclined to find that the prosecutor s statement was clearly improper. See Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974) ( [A] court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning ). We note, however, that protecting the record in this way was unnecessary under the circumstances. While we appre ciate the government s attempts to make our jobs easier by clarifying issues with the trial court, the district court s earli er rulings on the subject should have alleviated any concerns about the district court s reliance on anything Stinefast may have said to the government s expert. Months before sen tencing, the district court issued a minute order in which it expressly ordered the government s expert not to distribute her examination report to any party, including the court. Moreover, in resolving a separate dispute about the report, the district judge stated in open court that the report is not going to be used against Mr. Stinefast. In light of the preex No. 12 2435 9 isting clarity of the record on this issue, we think the gov ernment may have been a little too cautious in raising such a sensitive issue at the sentencing proceeding. Even if we found the prosecutor s comment to be im proper, however, Stinefast s claim would not succeed be cause he cannot show prejudice. We are convinced that the district court judge did not take the prosecutor s problematic statements into account in imposing sentence. Judges often hear improper argument and other forms of inadmissible evidence that they are presumed to disregard when deciding matters of importance. See Harris v. Rivera, 454 U.S. 339, 346 (1981). To overcome this presumption of conscientiousness on the part of district judges, a party must present some evi dence that the statement influenced the court s decisionmak ing. United States v. Shukri, 207 F.3d 412, 419 (7th Cir. 2000). In this case, the district court explicitly stated that I am not considering those as part of my sentence after the prosecu tor mentioned Stinefast s incriminating statements to the government s expert. We see no reason not to take the court at its word. In the absence of any indication that the district court predicated her sentencing decision on Stinefast s pur ported admissions, we must reject Stinefast s prosecutorial misconduct challenge. B. No Error Resulted from District Court s Considera tion of Diminished Capacity Argument Stinefast also contends that the district court failed to give meaningful consideration to his argument that he was less deserving of punishment because his offense was the product of a diminished capacity. In selecting an appropri ate sentence, district courts are expected to address princi pal, nonfrivolous arguments in mitigation ; failure to do so 10 No. 12 2435 constitutes procedural error. United States v. Chapman, 694 F.3d 908, 913 14 (7th Cir. 2012). But the judge s failure to discuss an immaterial or insubstantial dispute relating to the proper sentence would be at worst a harmless error. United States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005). Stinefast maintains that the district court erred in failing to address the effect of Stinefast s mental condition on his ability to refrain from engaging in the offense of conviction. As a general matter, courts may impose a lesser sentence based on a defendant s diminished capacity. United States v. Miranda, 505 F.3d 785, 792 (7th Cir. 2007). A defendant may be entitled to a lower sentence on this basis if, for example, the defendant has a significantly impaired ability to ¦control behavior that the defendant knows is wrongful and shows that this lack of restraint contributed substan tially to the commission of the offense[.] U.S.S.G. § 5K2.13. So in order to warrant a lower punishment due to a dimin ished capacity, there must be some showing that the de fendant s reduced mental capacity contributed to the com mission of the offense; such a link cannot be assumed. Unit ed States v. Frazier, 979 F.2d 1227, 1230 (7th Cir. 1992). We think the court s discussion, while brief, reflects its consideration and rejection of Stinefast s diminished capacity argument. As Stinefast acknowledges, the court did discuss the relationship between his psychological disorders and his offense: I will accept your representation and the representa tion of the doctor from the report in 2000 that you were sexually abused. And no doubt that has had an impact on you. And no doubt during this time period you were struggling with your own problems of be No. 12 2435 11 ing sexually abused as a child. But knowing what that did to you, you turned around and victimized chil dren. As the excerpt above shows, the court acknowledged Stinefast s serious mental health issues but decided that they had no effect on his willingness to refrain from distributing child pornography. Instead, the court reasoned that Stinefast was more deserving of punishment because he continued to develop the market for child pornography despite knowing the harm inflicted on the children involved in its production and distribution. Moreover, the court s discussion of this argument was more than sufficient given its lack of evidentiary support. Although Stinefast presented evidence showing that he sus tained serious psychological trauma as the victim of sexual abuse, there was no evidence at all linking his condition to his offense conduct. The psychiatric evaluation Stinefast submitted contained diagnoses for post traumatic stress dis order, depression, and anxiety resulting from his sexual abuse. But the report did not connect these mental health is sues with Stinefast s sexual fascination with children gener ally or to the specific instance of child pornography distribu tion that led to his conviction. Indeed, the report noted an absence of evidence that Stinefast was sexually attracted to children. Moreover, despite Stinefast s suggestions that the report showed he lacked the intellectual wherewithal to ap preciate the unlawful quality of his actions, the same report also states that Mr. Stinefast is of above average or well above average intelligence[.] The lack of evidence establish ing a link between Stinefast s psychological disorders and the offense of conviction rendered his diminished capacity 12 No. 12 2435 argument immaterial. See United States v. Portman, 599 F.3d 633, 639 (7th Cir. 2010) ( [A] legal diminished capacity find ing also requires a causal link between the mental capacity and the crime ); see, e.g., United States v. Beier, 490 F.3d 572, 574 (7th Cir. 2007) (affirming sentence when defendant did not present any evidence suggesting that a low normal IQ, or learning disabilities, break down a person s resistance to becoming ¦a producer of child pornography ). Although Stinefast s attorney argued that this connection existed in this case, these unsupported assertions are not evidence and cannot take the place of expert reports or other scientific ev idence needed to establish such a link. United States v. Chap man, 694 F.3d 908, 914 15 (7th Cir. 2012). Under the circum stances, even if we found any error resulting from the dis trict court s discussion of this argument, it would be harm less. Cunningham, 429 F.3d at 679. C. Stinefast s Sentence Was Reasonable Stinefast also argues in passing that his above guidelines sentence was unreasonable. We review the reasonableness of a district court s sentencing decision under an abuse of dis cretion standard. Gall v. United States, 552 U.S. 38, 46 (2007). We will uphold an above guidelines sentence so long as the district court offered an adequate statement of its reasons, consistent with 18 U.S.C. § 3553(a), for imposing such a sen tence. United States v. Taylor, 701 F.3d 1166, 1174 (7th Cir. 2012) (quoting United States v. Adebe, 651 F.3d 653, 657 (7th Cir. 2011)). If the court imposes an above guideline sentence, the court must provide a justification that explains and supports the magnitude of the variance. United States v. Bradley, 675 F.3d 1021, 1025 (7th Cir. 2012). An above guidelines sentence is more likely to be reasonable if it is No. 12 2435 13 based on factors sufficiently particularized to the individual circumstances of the case rather than factors common to of fenders with like crimes. United States v. Jackson, 547 F.3d 786, 792 93 (7th Cir. 2008) (internal quotation marks omit ted). We are convinced that the district court appropriately ex ercised its discretion by selecting an above guidelines sen tence for Stinefast. In deciding to impose a term of incarcera tion more than five years greater than the top of Stinefast s guidelines range, the district court considered a number of section 3553(a) factors and concluded that they warranted a more severe sentence in this case. With respect to Stinefast s personal characteristics, the court focused on Stinefast s mas sive collection of child pornography and reasoned that his insatiable demand for such materials likely contributed to the production of other images involving the sexual exploi tation of children. The court also cited the particularly dis turbing quality of Stinefast s collection, including images of infants being sexually abused, as favoring a higher sentence. In addition, the court also noted Stinefast s criminal history, particularly his previous convictions for causing children to expose their genitals, as aggravating factors. Moreover, the court relied heavily on the need for specific deterrence in imposing a higher sentence for Stinefast. In discussing this issue, the court found that Stinefast had shown his incorrigi bility by viewing and distributing child pornography even after serving jail time and completing sex offender treatment in connection with his prior convictions. In summary, the district court did not abuse its discretion in determining that these certain considerations unique to Stinefast warranted an above guidelines sentence in his case. 14 No. 12 2435 III. CONCLUSION The judgment of the district court is AFFIRMED.

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