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United States v. Schock

United States Court of Appeals, Sixth Circuit

July 10, 2017

United States of America, Plaintiff-Appellee,
v.
William Alan Schock, Defendant-Appellant.

         Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:16-cr-00025-1-Robert Holmes Bell, District Judge.

         ON BRIEF:

          Joshua A. Blanchard, MIEL & CARR, PLC, Greenville, Michigan, for Appellant.

          Alexis M. Sanford, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.

          Before: COLE, Chief Judge; GIBBONS and ROGERS, Circuit Judges.

          OPINION

          JULIA SMITH GIBBONS, Circuit Judge.

         William Schock was sentenced to 240 months' imprisonment after pleading guilty to the sexual exploitation of a minor. In this appeal, Schock challenges the application of a § 2G2.1(d)(1) sentencing enhancement for multiple victims and claims that the district court imposed a fine that violates both the statutory maximum penalty and the Eighth Amendment. Because the district court erred by applying § 2G2.1(d)(1), we vacate Schock's sentence and remand for resentencing.

         I.

         In February 2016, a federal grand jury in the Western District of Michigan returned a five-count indictment against William Schock, charging him with four counts of sexually exploiting a child in October 2011 (Count 1), June 2013 (Count 2), September 2013 (Count 3), and August 2014 (Count 4), all in violation of 18 U.S.C. § 2251. The indictment alleged that each incident involved Schock taking sexually explicit pictures of a six- to eight-year-old victim, but it did not identify the victim associated with each incident or specify the total number of victims. Schock was also charged with possessing child pornography, in violation of 18 U.S.C. § 2252A (Count 5), because he had sexually explicit pictures and videos of minor children other than the victims in Counts 1 through 4.

         In May 2016, Schock entered into a plea agreement with the United States. He agreed to plead guilty to Count 3 (the September 2013 child-exploitation charge), to forfeit certain property, to pay restitution, and to register as a sex offender. Count 3 stated, in relevant part, that:

On or about September 5, 2013, . . . [Schock] knowingly did, and attempted to, use, persuade, induce, and entice a minor to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct . . . .
Specifically, [Schock] photographed [Victim 2], depicting and intending to depict the child displaying her pubic area to the camera in a lascivious manner.

DE 4, Indictment, Page ID 13. Schock stipulated that the government could prove he had taken at least four sexually explicit photographs of an eight-year-old child (Victim 2)[1] in September 2013 and could thus establish the elements of Count 3. Although the plea agreement did not contemplate a specific calculation under the United States Sentencing Guidelines, it indicated that the court could consider all of Schock's uncharged conduct in determining the applicable Guidelines range. Schock preserved the ability to challenge his sentence if it was improperly calculated.

         In June 2016, the district court accepted both the plea agreement and Schock's guilty plea as to Count 3. It also requested a Presentence Investigation Report (PSR). That document provides the most detailed account of Schock's conduct.[2]

         The Michigan State Police started investigating Schock when Victim 1, a relative of his, revealed that Schock had taken inappropriate pictures of her. When officers executed a search warrant at Schock's Michigan home in September 2015, Schock gave a voluntary statement- admitting to photographing Victim 1 as alleged-and directed the police to four DVDs containing sexually explicit photographs. The material on these DVDs indicated that Schock had also taken inappropriate pictures of another relative, Victim 2. Investigators ultimately recovered photographs of Victim 1 that were taken in August 2014 and photographs of Victim 2 that were taken in October 2011, June 2013, September 2013, and April 2015.[3]

         Starting from a base offense level of 32, the PSR recommended the following enhancements: four points under § 2G2.1(b)(1)(A) because the victim was under the age of twelve; two points under § 2G2.1(b)(5) because the defendant was a relative of the victim; five points pursuant to § 4B1.5 because the offense of conviction was a covered sex crime; and, because Shock's relevant conduct included more than one victim, two points pursuant to § 2G2.1(d)(1)'s adoption of the multiple-count enhancement in § 3D1.4. The PSR also recommended a three-point reduction for acceptance of responsibility. Schock's total offense level of 42, along with a criminal-history category of I, resulted in a Guidelines range of 360 months' to life imprisonment.

         Schock objected to several of the PSR's recommendations. As relevant here, he challenged the applicability of § 2G2.1(d)(1), arguing that his exploitation of Victim 1-conduct not charged in Count 3-was not relevant conduct under the Guidelines and could not trigger the multiple-victim enhancement. The district court overruled the objection, finding that Schock's conduct with Victim 1 was relevant. The district court adopted the PSR's Guidelines calculations but imposed a below-Guidelines sentence of 240 months' imprisonment and five years' supervised release, citing Schock's age (sixty-six), acceptance of responsibility, and low risk of re-offense.

         The district court then made the following statement:

[T]he Court is going to require that Mr. Schock pay a monthly stipend to the Federal Bureau of Prisons equal to the cost of his incarceration as determined by the Federal Bureau of Prisons and that this be paid by someone in his family when that amount is determined so that in fact the ...

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