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.
A. Blanchard, MIEL & CARR, PLC, Greenville, Michigan, for
M. Sanford, UNITED STATES ATTORNEY'S OFFICE, Grand
Rapids, Michigan, for Appellee.
Before: COLE, Chief Judge; GIBBONS and ROGERS, Circuit
SMITH GIBBONS, Circuit Judge.
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
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.
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
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.
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
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.
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.
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.
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 ...