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Jack Wayne Rogers pleaded guilty to two counts of possession of child pornography in violation of 18 U. At a sentencing hearing held prior to the Supreme Court's decision in Blakely v. Washington, U. The court then departed upward and sentenced Rogers to months in prison. The court's statement of reasons cited a victim's physical injury, see U.
Rogers appeals the severe upward departure. We affirm. The charges against Rogers resulted from warrant searches of his home and business. Investigators seized computers and data storage devices on which they found at least images of child pornography that included sexually explicit photographs of prepubescent children.
These images were the basis for the two counts of possessing child pornography. Forensic analysis revealed that Rogers had distributed numerous e-mail attachments showing male children engaged in sexually explicit conduct, including photographs of children chained and bound by ropes. These images were the basis for the five counts of child pornography distribution. Investigators also discovered numerous photographs of Rogers posing with severed male genitals, wearing them on his head, placing them in his mouth and apparently chewing them, placing them in a coffee cup or on a plate, and attaching severed penises together.
Evidence that Rogers e-mailed some of these images to others was the basis for the three counts of distributing obscene materials. In Rogers's home, office, and van, investigators found surgical equipment, items used in bondage and torture, and books dealing with these subjects.
After Rogers pleaded guilty to all counts, the Presentence Investigation Report PSR recounted the above-summarized facts underlying the offense conduct. Applying the Guidelines effective November 1,the PSR ased Rogers a total offense level of 24, a criminal history category of II based on a federal child pornography conviction, and a recommended mandatory Guidelines sentencing range of 57 to 71 months. Rogers placed her genitals in a plastic bag in the refrigerator.
His assistant took photographs of the procedure which were subsequently posted on the Internet. The victim bled profusely during the operation and for six days thereafter, when she finally admitted herself to an emergency room. The emergency room urologist who treated her testified that she would have died from the bleeding if she had not come to the hospital that night. An acquaintance of Rogers testified that he had been present when Rogers performed several nullifications and had even photographed one such operation at Rogers's request.
At the conclusion of the testimony the district court granted the government's motion to depart upward to months, stating:. I've heard the evidence here and the motion for upward departure. And I am going to depart upward. And based on the of images, the extreme nature of the conduct, I can't imagine any more extreme conduct. And, of course, then it was a serious injury that-it's a wonder she didn't die from it.
Just a wonder. The court imposed the statutory maximum of ten years for counts 1 and 2 possession of child pornographya consecutive sentence of twenty years for counts distribution of child pornographyand a concurrent sentence of five years, the statutory maximum, for counts distribution of obscene materials. Rogers first argues that the district court violated his Sixth Amendment rights by departing upward on the basis of facts not found by a jury or admitted in his plea agreement.
This argument is based on the subsequent decision in Blakely, whose impact on the federal Sentencing Guidelines was later defined in United States v. Booker, U. Thus, Rogers waived the claimed Sixth Amendment rights in the plea agreement.
There remains an issue that Rogers did not raise-whether the district court committed reversible error when it sentenced him under mandatory Guidelines that are now advisory under Booker. Pirani, F. Thus, there was no plain error. Cunningham, F. We disagree. Rogers's pre-hearing memorandum responded on each issue.
The court's written statement of reasons was consistent with its statement in open court. In these circumstances, we agree with the government that the court's statements, while cryptic, provide us with specific reasons for the departure that are sufficient for appellate review.
See United States v. Aguilar-Lopez, F. This is not a case like United States v. Fuentes, F. Tucker, F. Therefore, Rogers contends, the facts justifying an upward departure are insufficiently related to his offenses of conviction.
This contention reflects a misunderstanding of sentencing under the Guidelines. The permissible range of information includes dismissed or uncharged criminal conduct.
Kim, F. That is doubtless true, but even a remote relationship will suffice. Flores, F. Given this liberal standard, Rogers's conduct in performing the heinous and dangerous motel room nullification procedure is without a doubt sufficiently related at least to the obscenity counts of conviction to be considered for upward departure purposes.
When the defendant has been convicted of multiple offenses, the Guidelines sentencing range is determined by applying the grouping rules in Part 3D. Evans, F. Thus, Rogers's argument that his extreme conduct causing physical injury is only related to the counts having the lowest statutory maximum sentence is irrelevant.
Finally, Rogers argues that the extent of the upward departure-over twenty four years-is unreasonable. Both standards require that we review a departure in light of the sentencing factors set forth in 18 U. Hadash, F. Though the length of the departure is atypical, it is comparable to the month departure imposed on a sex offender who unintentionally killed while engaging in a risky form of sexual abuse, a departure affirmed by the Second Circuit in United States v.
Reis, F. In conclusion, we affirm the month sentence imposed by the district court. We note, however, that the court did not correctly apply U. The five child pornography distribution counts carried the highest statutory maximum sentence, thirty years. We remand the case to the district court for entry of a modified judgment consistent with the requirements of U.
Part 5G See U. C, amend. The new provision imposes a 5-level increase for offenses involving more than images. The contention also misrepresents the record. The district court based its departure in part on the large of pornographic images that Rogers possessed and distributed, a permissible ground for departure on all ten counts of conviction.
Rugh, F. Explore Resources For Practice Management. Legal Technology. Corporate Counsel. Begin typing to search, use arrow keys to navigate, use enter to select. Reset A A Font size: Print. Lawrence E. Miller, U.Sex chat Rogers Connecticut
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