United States v. Randall Wilke

156 F.3d 749, 155 A.L.R. Fed. 677, 1998 U.S. App. LEXIS 22611, 1998 WL 615561
CourtCourt of Appeals for the Seventh Circuit
DecidedSeptember 16, 1998
Docket98-1488
StatusPublished
Cited by26 cases

This text of 156 F.3d 749 (United States v. Randall Wilke) 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. Randall Wilke, 156 F.3d 749, 155 A.L.R. Fed. 677, 1998 U.S. App. LEXIS 22611, 1998 WL 615561 (7th Cir. 1998).

Opinions

KANNE, Circuit Judge.

Randall Wilke pled guilty to one count of violating 18 U.S.C. § 2242(a)(1), which prohibits the transporting of child pornography through interstate commerce. Application of the 1995 version of United States Sentencing Guidelines Manual (“Guidelines” or “U.S.S.G.”) resulted in a sentencing range of 21-27 months. Wilke moved for a downward departure from this range on grounds that included his vulnerability to abuse in prison and his extraordinary contributions as a volunteer in the local community. The district court accepted these arguments and departed from the Guidelines’ range. We vacate Wilke’s sentence and remand for resentenc-ing.

I. History

Based on information from the FBI’s office in New Jersey that Wilke exchanged child pornography via mail and computer with a man in New Jersey, the FBI in Chicago obtained a search warrant for Wilke’s residence in St. Charles, Illinois. While executing the search warrant on June 6, 1996, the [751]*751FBI seized magazines and periodicals containing child pornography, over 50 videotapes and still photographs containing child pornography, and 59 computer disks containing over 203 images of boys engaged in sexual acts. The FBI also interviewed Wilke at this time. Wilke admitted that he was a closet pedophile and that he obtained pleasure from viewing his child pornography collection.

On September 24, 1996, a grand jury charged Wilke with violating 18 U.S.C. §§ 2252(a)(1), 2252(a)(4)(B), and 2253. The indictment alleged that Wilke possessed and distributed child pornography. On December 20, 1996, Wilke entered into an agreement with the government in which he pled guilty to distributing child pornography. During the change of plea proceeding, Wilke also stipulated pursuant to U.S.S.G. § 1B1.2 that he possessed child pornography. The district court accepted Wilke’s change of plea.

After the change of plea proceeding, the United States Probation Office prepared a Presentence Investigation Report (“PSR”), which contained its calculation of Wilke’s applicable sentencing range. The PSR concluded that Wilke had a total offense level of 16 and a corresponding sentencing range of 21-27 months. These calculations were consistent with those set forth in Wilke’s plea agreement.

On May 21, 1997, the district court commenced Wilke’s sentencing hearing. Although the PSR was not disputed at the hearing, Wilke requested a sentence of probation. After the court noted that Wilke had not filed a downward departure motion, the district court continued the hearing to allow Wilke an opportunity to file such a motion. At the close of the hearing, the court commented on the number of letters written by members of the St. Charles community on Wilke’s behalf and questioned whether, “leaving the guidelines aside,” anything would be added “by sending him to a prison where it would be a pretty rough time.” Sent. Tr. Vol. 2 at 30, United States v. Wilke, 995 F.Supp. 828 (N.D.Ill.1997).

After Wilke filed a motion for sentencing departure raising grounds that included vulnerability to abuse in prison and involvement in charitable activities in the local community, the parties appeared before the district court on August 1,1997. At Wilke’s request, the district court agreed to hear testimony on the subject of Wilke’s vulnerability to abuse in prison, and the court asked the government to file a submission discussing the arrangements the Bureau of Prisons (“BOP”) could make to ensure that Wilke was not subject to abuse. The district court then expressed a “strong ... belief among many federal judges that a person with Mr. Wilke’s characteristics and with the offense to which he has pled guilty is liable to be victimized.” Sent. Tr. Vol. 4 at 5. The court requested additional information in order to have “something more than a belief on which to act.” Id. at 4. Later in the hearing, during a discussion about whether Wilke’s physical characteristics differed from the characteristics of defendants in other cases involving claims of vulnerability to abuse in prison, the district court noted that it had “to consider as well how it all related in terms of his safety with the crime of which he is charged.” Id. at 8.

On November 17, 1997, the district court held an evidentiary hearing. Wilke called one witness, George Valdes, who testified that he had been incarcerated in federal institutions for drug related offenses and that, in his opinion, inmates convicted of crimes similar to Wilke’s “would be at the bottom of the crime ladder.” Sent. Tr. Vol. 6 at 10. Valdes elaborated, “[ajnything related to a sexual crime involving a minor is the lowest thing in the Bureau of Prisons, is the lowest thing in any criminal mind.” Id. He opined that the BOP would not be able to keep this type of sex offender safe. See id. at 18. Valdes also testified that any inmate who harmed a sex offender was considered a “hero” and that inmates would do whatever they could to “make sure that [a sex offender] doesn’t get out [of prison].” Id. at 16, 21. In response to a question by Wilke’s attorney as to what would happen to Wilke “given [Wilke’s] physical characteristics and his crime,” id. at 18, Valdes stated that Wilke would be abused, raped, and turned into a sex slave. See id. at 18-19. In his opinion, Wilke had no street sense and that even if he [752]*752were not a sex offender he would be in trouble because he looked scared and not like someone who could fight. Wilke was forty-six years old, stood 511” tall, and weighed 160 pounds. He is homosexual.

On cross-examination, Valdes stated that he did not know much about the circumstances of the offenses of which Wilke had been accused or convicted. Valdes also admitted that he had not spent any time in a sex-offender unit and that he was never incarcerated at the BOP facilities in Rochester, Waseca, Springfield, or Sandstone. (According to the government, these facilities are the low security institutions in the North Central Region to which Wilke would likely have been assigned.) Finally, Valdes testified that it had been almost two years since he had been in the prison system and that he was not aware of any recent measures the BOP had taken to protect individuals convicted of sex-related offenses.

The government called four witnesses: (1) Terry Childers, a probation officer in the Northern District' of Illinois who specializes in sexual abuse cases; (2) Lori Colley of the BOP’s North Central Region who assigns defendants from the Northern District of Illinois; (3) Dr. Dudley Terrell, Chief Psychologist at the BOP’s Butner, North Carolina facility; and (4) Dr. Andres Hernandez, the Director of the Sex Offender Treatment Program at Butner. These witnesses testified about the facilities to which Wilke would be designated, the presence and physical characteristics of inmates convicted of offenses involving child pornography at those facilities, the frequency of abuse in the BOP system, the precautions taken by the BOP to prevent sexual assault, the type of inmates in the Butner sexual offender treatment program, and the availability of the Butner program to Wilke.

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Bluebook (online)
156 F.3d 749, 155 A.L.R. Fed. 677, 1998 U.S. App. LEXIS 22611, 1998 WL 615561, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-randall-wilke-ca7-1998.