United States v. Hodge

729 F.3d 717, 2013 WL 4767018, 2013 U.S. App. LEXIS 18648
CourtCourt of Appeals for the Seventh Circuit
DecidedSeptember 6, 2013
Docket12-2458
StatusPublished
Cited by7 cases

This text of 729 F.3d 717 (United States v. Hodge) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hodge, 729 F.3d 717, 2013 WL 4767018, 2013 U.S. App. LEXIS 18648 (7th Cir. 2013).

Opinion

TINDER, Circuit Judge.

Larry Hodge pleaded guilty and was sentenced to 1380 months’ imprisonment for multiple child pornography offenses. During his sentencing hearing, he offered testimony in mitigation from psychiatrist Dr. Louis Cady. The district court discussed some of Cady’s findings in explaining the sentence imposed, but neglected to mention other findings, most notably Dr. Cady’s contentions that Hodge’s history of sexual and psychological abuse as a child contributed to his decision to commit his offenses and that Hodge was unlikely to reoffend. Hodge claims that the district court’s alleged failures to address adequately these arguments constitute procedural error. We disagree.

[719]*719I.

In November 2010, police in Evansville, Indiana, received a tip that Hodge had sent text messages containing sexually explicit images of Hodge and a child. Under police questioning, Hodge identified himself in the images and admitted to engaging in sexual acts with the child. During a search of Hodge’s home, police seized a computer and data storage equipment that contained several disturbing images, including depictions of the child performing oral sex on Hodge, sexually explicit poses and acts involving the child and Hodge’s wife, and sadistic abuse of the child involving ropes and a dog collar. Hodge later admitted that the child in these images was his niece, who was nine-years-old at the time of most of the abuse.

In March 2011, Hodge was indicted on seven counts of production of sexually explicit material involving a minor in violation of 18 U.S.C. § 2251(a) and (e), two counts of conspiracy to produce sexually explicit material involving a minor in violation of 18 U.S.C. § 2251(a), and two counts of distribution of sexually explicit material involving a minor in violation of 18 U.S.C. § 2252(a)(1). Hodge’s wife and another person who received some of these images from Hodge were also indicted on several charges. Hodge initially pleaded not guilty to these charges, but then changed his plea to guilty in December 2011.

The presentencing report correctly stated that the entire range for Hodge’s advisory Guidelines sentence was 3720 months, i.e., 310 years. (His Guidelines total Offense Level was 49, for which the Sentencing Table recommends life imprisonment. However, the maximum period of incarceration allowed by any of the statutes under which he was convicted is 30 years. Therefore, his Guideline range, or in this case a point, is determined by calculating the maximum allowable sentence on each count if imposed consecutively. See U.S.S.G. § 5Gl.l(a).) Prior to sentencing, Hodge submitted to three psychiatric evaluations performed by Dr. Cady. Hodge also filed a sentencing memorandum, in which he argued for a downward departure from the advisory Guidelines based on his acceptance of responsibility, community service, past history as a victim of childhood sexual abuse, and contention that he was not likely to reoffend following completion of sex offender counseling and treatment. The government also filed a sentencing memorandum, in which it argued that Hodge’s sentences for each count should run consecutively, based on the seriousness of his offenses, the harm to the victim, and the need to avoid sentencing disparities between similar offenders.

The district court held a sentencing hearing in May 2012. Dr. Cady testified at this hearing, where he described Hodge’s mental health issues that, according to Dr. Cady, culminated in Hodge committing these offenses. Dr. Cady testified that Hodge was the victim of sexual abuse as a child. According to Dr. Cady, the trauma that Hodge suffered from this experience, coupled with his early exposure to pornography and extensive physical and emotional abuse, caused Hodge to become prematurely sexualized. Hodge’s early sexualization led to impaired brain function and other serious problems as an adult. Dr. Cady stated that Hodge’s. childhood trauma and consequent mental and physical health issues as an adult helped form the basis of an addiction to pornography, obsessive personality disorder, and other psycho-biological disorders. These problems, in turn, contributed to his committing the instant offenses.

In making this diagnosis, Dr. Cady relied in part on Hodge’s statement to him that Hodge had not engaged in oral sex with the victim. In fact, Dr. Cady did not [720]*720view the photographs that were the subject of the prosecution. Instead, he relied on Hodge’s explanation to him of how the molestations occurred and how the photographs were produced. During the government’s cross-examination of him, Dr. Cady stated that, were he to learn that Hodge had not been truthful on this point, “if it was a calculated, deliberate attempt to mislead me, I would be concerned about it,” but that it would not necessarily affect Dr. Cady’s assessment of Hodge. After reviewing photographic evidence, the district court concluded that Hodge had in fact engaged in oral sex with the victim. Dr. Cady also testified that part of the reason he felt Hodge to be capable of rehabilitation is that his conversations with Hodge led him to believe that various degrading depictions of the child victim had been merely posed with the consent of the child, and were not coerced events. Dr. Cady stated that if he were to learn that force was used, he would be more concerned about Hodge’s prospects for rehabilitation. The government later introduced some of Hodge’s photographs for the judge’s viewing which showed the child victim’s face being shoved into the buttocks of an adult.

Dr. Cady concluded that Hodge was unlikely to reoffend. Dr. Cady based this conclusion in part on Hodge’s acceptance of responsibility for his offenses, his separation from pornographic material while in detention, and the prospect that Hodge could participate in a sex offender treatment group in prison. Although Dr. Cady found that Hodge meets many, if not all, of the criteria for pedophilic disorder, Dr. Cady expressly stated that he did not diagnose Hodge with that disorder.

In addition to Dr. Cady, Hodge called three family members as witnesses. These family members testified that Hodge had positive relationships with them and was a hard worker. The government called an Evansville police detective in aggravation. This detective laid the foundation for admitting copies of all of the images into evidence, including the ones mentioned above. Following the testimony of these witnesses, Hodge argued for a sentence of 180 months (fifteen years). The government argued for a 1380-month (115-year) sentence.

After correctly calculating the advisory Guidelines range, the district court discussed the considerations that it weighed in determining Hodge’s sentence, paying particular attention to the factors that 18 U.S.C. § 3553(a) directs courts to consider. The district court began its discussion of the § 3553(a) factors with the nature and circumstances of Hodge’s offenses. The court emphasized the disturbing nature of the images, Hodge’s betrayal of his niece’s trust, the likelihood that the victim would “always ... have [the offenses] in the back of her mind,” and the permanence of images posted online, making them a continuing source of harm to the victim.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Warren Barr, III
960 F.3d 906 (Seventh Circuit, 2020)
United States v. Woods
808 F.3d 1177 (Seventh Circuit, 2015)
United States v. Bryce Woods
Seventh Circuit, 2015
United States v. Agustin Rodriguez-Sanchez
594 F. App'x 886 (Seventh Circuit, 2015)
United States v. Nathan Benhoff
755 F.3d 504 (Seventh Circuit, 2014)
United States v. Lori Hargis
747 F.3d 917 (Seventh Circuit, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
729 F.3d 717, 2013 WL 4767018, 2013 U.S. App. LEXIS 18648, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hodge-ca7-2013.