United States v. Schrode

839 F.3d 545, 2016 U.S. App. LEXIS 18278, 2016 WL 5867043
CourtCourt of Appeals for the Seventh Circuit
DecidedOctober 7, 2016
DocketNo. 15-3522
StatusPublished
Cited by33 cases

This text of 839 F.3d 545 (United States v. Schrode) 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. Schrode, 839 F.3d 545, 2016 U.S. App. LEXIS 18278, 2016 WL 5867043 (7th Cir. 2016).

Opinion

WILLIAMS, Circuit Judge.

Charles Schrode was convicted in state court for predatory criminal assault of a four-year-old family member. He later pled guilty in federal court to videotaping assaults of the same child on two other dates, and receiving and possessing child pornography of other victims. He was sentenced to 630 months’ imprisonment for the federal offenses, some of which was to run consecutively to his state sentence. On appeal, Schrode argues that none of his federal sentence should run consecutively to his state sentence. But we affirm Schrode’s sentence. The district court did not err in applying some of his federal sentence to run consecutively to his state sentence, because it did not clearly err in finding that his state offense was not relevant conduct for all of his federal offenses.

Schrode also received a life term of supervised release, which he now challenges, along with several of the conditions of supervised release, which he argues improperly delegate judicial power to the probation office. However, not only did the district court adequately justify its reasons for imposing a life term of supervision, Schrode also waived any challenges to his conditions of supervised release by affirmatively withdrawing his objections to those conditions at the sentencing hearing. Nonetheless, we grant a limited remand to bring the sentencing calculation for Schrode’s production offenses in compliance with 18 U.S.C. § 2251(e).

I. BACKGROUND

A. Schrode’s Offenses

On April 7, 2013, Schrode committed predatory sexual assault against Jane Doe, a four-year-old family member. He pled guilty in state court in February 2014 and was sentenced to 18 years’ imprisonment.

In June 2013, the FBI executed a search warrant of Schrode’s home in Springfield Illinois. The search led to the discovery that in May 2012, Schrode sent child pornography from Illinois to a man in Michigan. In exchange, Schrode watched the [549]*549Michigan man through streaming video and directed him through web chats as he sexually assaulted his son. The FBI discovered over 200 still images and four videos of child pornography on Schrode’s computer in his Illinois home. In June 2014, when Schrode was in state custody, his wife discovered videos of him sexually assaulting Jane at the home of a family friend in February and March 2013. She gave the video footage to Jane’s father, who turned it over to the FBI.

Schrode was indicted on four federal counts: first, for receiving child pornography of the Michigan victim in May 2012; second, for producing child pornography by videotaping his sexual assault of Jane in February 2013; third, for producing child pornography. of Jane in March 2013; and fourth, for possessing child pornography that the FBI discovered on his computer in June 2013. He pled guilty to all counts.

B. Application of Sentencing Guidelines

At Schrode’s sentencing hearing, the district court grouped Schrode’s offenses pursuant to U.S.S.G. § 3D1.1. The first group included counts one and four (receipt and possession of child pornography), the second group contained the single count of production of child pornography in February 2013, and the third group contained the single count of production of child pornography in March 2013. Production of child pornography is not a groupable offense. U.S.S.G. § 3D1.2(d). The district court explicitly addressed the presentence report finding that Schrode’s state offense was relevant conduct to the “instant offense.” The judge noted that she was unsure the conduct which led to Schrode’s state sentence' was relevant to his federal offenses because “these were three separate rapes and two of these rapes involved child pornography production. Those are the two I’m dealing with. And they were in a different period of time.” Ultimately the judge determined that although she had “grave reservations that it is relevant conduct,” she would treat the rape for which Schrode was serving his state court sentence as relevant conduct for his production counts (counts 2 and 3). The judge then calculated a sentence of 60 months for the receipt count, 363 months for each production count, and 240 months for the possession- count.

In addition to determining the prison term for each count, the court had to decide whether the sentence for each group would run concurrently or consecutively to the state prison ■ sentence by applying § 5G1.3 of the Guidelines. It concluded that because the state prison sentence was for conduct relevant to the production counts, Schrode’s time served for the state sentence would be credited to those sentence terms, which would also run concurrently with the state term of imprisonment. However, because the state sentence did not involve conduct that was relevant to the offenses of receipt and possession of pornography (Jane did not appear in any of the pornography that formed the basis of those counts), those sentences would run consecutively to the state court sentence. In making its ruling, the district court stated it was relying on both § 5G1.3(b) and (d) of the'Guidelines. Schrode objected to the court’s finding that the offense underlying the state sentence was relevant conduct for some of the counts but not others. Ultimately, the court imposed an aggregate sentence of 630 months’ imprisonment, with an adjusted sentence of 330 months for the production counts (starting with 663 months and then crediting the 33 months already served on state sentence), to run concurrently with [550]*550Schrode’s state sentence and with each other; 240 months for the possession count, to run consecutively with the other federal counts and his state sentence; and 60 months for the receipt count, to run consecutively with the other federal counts and the state sentence.

C. Conditions of Supervised Release

After determining Schrode’s term of imprisonment, the court imposed a life term of supervised release. As part of his supervised release term, the court imposed four discretionary conditions, the relevant portions of which are included below:

Condition 3: The defendant shall follow the instructions of the probation officer. He shall answer truthfully the questions of Probation as they relate to his conditions of supervision, subject to his right against self-incrimination.
Condition 8: The defendant shall participate in a sex offender treatment program as deemed necessary by probation.
Condition 13: [Thé defendant] shall, at the direction of the U.S. Probation Office, participate in a program for substance abuse treatment including not more than six tests per month to determine whether he has used controlled or psychoactive substances .... He shall be subject to this condition until such time as Probation determines that drug abuse treatment. and drug testing no longer assist him to avoid committing further crimes.
Condition 14: The defendant shall participate in psychiatric services and/or a program of mental health counseling/treatment as directed by Probation .... He shall be subject to this condition until such time as Probation determines that mental health counseling/treatment no longer assists him to avoid committing further crimes.

II. ANALYSIS

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Bluebook (online)
839 F.3d 545, 2016 U.S. App. LEXIS 18278, 2016 WL 5867043, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-schrode-ca7-2016.