Judges: Per Curiam
Filed: Jul. 31, 2008
Latest Update: Mar. 02, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued July 9, 2008 Decided July 31, 2008 Before RICHARD A. POSNER, Circuit Judge DIANE S. SYKES, Circuit Judge JOHN DANIEL TINDER, Circuit Judge No. 07-4089 Appeal from the United States UNITED STATES OF AMERICA, District Court for the Plantiff-Appellee, Western District of Wisconsin. v. No. 07 CR 114 MARK BERGMANN, Barbara B. Crabb,
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued July 9, 2008 Decided July 31, 2008 Before RICHARD A. POSNER, Circuit Judge DIANE S. SYKES, Circuit Judge JOHN DANIEL TINDER, Circuit Judge No. 07-4089 Appeal from the United States UNITED STATES OF AMERICA, District Court for the Plantiff-Appellee, Western District of Wisconsin. v. No. 07 CR 114 MARK BERGMANN, Barbara B. Crabb, ..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 9, 2008
Decided July 31, 2008
Before
RICHARD A. POSNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 07‐4089
Appeal from the United States
UNITED STATES OF AMERICA, District Court for the
Plantiff‐Appellee, Western District of Wisconsin.
v. No. 07 CR 114
MARK BERGMANN, Barbara B. Crabb,
Defendant‐Appellant. Chief Judge.
O R D E R
Mark Bergmann pleaded guilty to distributing child pornography. See 18 U.S.C.
§ 2252(a)(1). The district court sentenced Bergmann to 480 months’ imprisonment, the
statutory maximum and default top of the guidelines range. Bergmann argues that the
district court abused its discretion in denying a continuance of the sentencing hearing,
which Bergmann sought to allow a retained psychologist to evaluate him. Bergmann hoped
the results of the examination would favorably influence the sentencing court. He also
maintains that the district court erred in failing to address what he considers nonfrivolous
sentencing factors. Both contentions are without merit.
No. 07‐4089 Page 2
I. Background
After receiving a tip from an informant that Mark Bergmann was distributing child
pornography, police executed a search warrant at Bergmann’s home and interviewed him.
Bergmann admitted that he sent the image the informant had brought to the attention of the
police and also admitted that he had claimed it was an image of his daughter (it was not).
He also disclosed that he had sexually assaulted his eldest daughter two or three times
when she was three or four years old and that he was convicted of sexually assaulting his
four‐year‐old niece in the early 1990s.
The FBI examined Bergmann’s computer equipment, including hard drive, thumb
drives, and CDs that were seized in the search of his home. The examiners found
1,371 pictures and 71 videos containing child pornography. Many of the pornographic
images and videos were of especially young children, including infants and toddlers.
Others were of children between ages 5 and 8, many having violent and sadistic sexual acts
performed on them.
A grand jury in the Western District of Wisconsin returned a three‐count indictment
against Bergmann. Counts 1 and 2 charged Bergmann with distributing child pornography,
and count 3 charged that he possessed child pornography. Bergmann struck a plea
agreement with the government, and in September 2007 he pleaded guilty to count 2 in
return for dismissal of counts 1 and 3. Sentencing was scheduled for December 18, 2007,
about 12 weeks after the plea was taken.
The probation officer calculated Bergmann’s guidelines range as 360 months to life.
This included a base offense level of 22, see U.S.S.G. § 2G2.2(a)(2), plus 23 additional points
because the material involved prepubescent children, portrayed sadistic conduct, involved a
computer, included more than 600 images, and was distributed in return for a thing of
value, and because Bergmann had engaged in a pattern of activity involving sexual abuse of
a minor. See U.S.S.G. § 2G2.2(b)(2), (b)(3)(B), (b)(4), (b)(5), (b)(6), (b)(7)(D). After
subtracting three points for acceptance of responsibility, see U.S.S.G. § 3E1.1(a), the
guidelines produced a total offense level of 42, which when indexed with Bergmann’s
criminal history category of I, yielded a sentencing range of 360 months to life. The
statutory maximum punishment under 18 U.S.C. § 2252(a)(1), however, is 480 months for
defendants who, like Bergmann, have previously been convicted of an offense relating to
sexual assault of a minor. See 18 U.S.C. § 2252(b)(1). So 480 months became the top of the
guidelines range. See U.S.S.G. § 5G1.1(c); United States v. Krueger, 415 F.3d 766, 774 (7th Cir.
2005).
No. 07‐4089 Page 3
On December 12, 2007, less than a week before sentencing was to take place,
Bergmann moved to continue sentencing and requested a date at least 30 days after the
original sentencing date of December 18, 2007. Bergmann advised the court that although a
retained psychologist had been provided with the materials needed to examine him a
month earlier, she had been unable to schedule an examination. Bergmann said the
psychologist would be able to conduct the examination the following week and would be
able to complete her report “shortly after Christmas.”
The government objected to rescheduling Bergmann’s sentencing because his adult
daughter, who he had molested as a child, wanted to attend. The daughter, who was
serving in the U.S. Army and stationed in Germany, had received special permission to
travel to the hearing and was already en route. Moreover, the government saw the
daughter as an “indirect” victim because Bergmann had told the informant that the photo
he sent was of his daughter and because Bergmann’s sexual assault of this daughter was an
important sentencing factor. The government also argued that any new psychological
evidence could not be given much weight because Bergmann refused to disclose his prior
psychological evaluations and treatment history.
Bergmann explained that the psychologist was hired in late October, but that her
schedule did not allow her to interview him in time for the December 18 sentencing.
Bergmann urged that the examination would reveal whether he was at risk of recidivism.
Bergmann did not, however, make an offer of proof about what the psychologist’s findings
would be. Indeed, the examination was never performed, and as counsel conceded at oral
argument, “to this day” it is not known what the psychologist’s findings might have been.
At the conclusion of the hearing, the district court orally reinstated the original
December 18, 2007 sentencing date. Bergmann moved for reconsideration, arguing that
expert testimony was necessary to determine if he was likely to recidivate. The court denied
the motion, noting that it had originally agreed to the continuance under the mistaken belief
that the government did not oppose it. The court noted the daughter’s interest in attending
the hearing and the difficulty inherent in her attendance, and also observed that a
psychological evaluation would not be particularly helpful in this case:
[T]he questions that defendant wants the psychologist to evaluate have been
answered: by defendant’s own actions and his criminal history. Defendant
has two prior convictions for sexual assault of a child and he admitted to a
third assault of a two‐year‐old child for which he was never charged. He was
put on probation for both assault convictions and had an opportunity to
engage in sex offender treatment, yet despite that treatment, he still remains
in thrall to violent and sadistic child pornography.
No. 07‐4089 Page 4
The district court concluded that given this history, “no prediction by a psychologist would
hold much sway, no matter how experienced, qualified or perceptive the psychologist
might be. It is not necessary to predict how [the] defendant acts when given the
opportunity for probation. His history shows that he commits additional crimes.”
At sentencing, Bergmann argued for a sentence below the guidelines range because
“we have the civil commitment procedure and Mr. Bergmann would certainly be
susceptible to that if federal authorities determine that Mr. Bergmann would be a danger to
society,” and because a sentence within the guidelines range would create unwarranted
disparity. The court sentenced Bergmann to 480 months’ imprisonment. The court
explained that it believed the maximum sentence was warranted because Bergmann
possessed thousands of images of child pornography and distributed those images on the
Internet; his prior offenses demonstrated that he could not be monitored effectively; his
presence in the community endangered children; and his prior treatment was ineffective.
The court did not comment on either of Bergmann’s arguments.
II. Analysis
Bergmann first submits that the district court violated due process when it denied a
continuance to allow him to be evaluated by a psychologist. Second, he maintains that the
district court did not adequately consider the sentencing factors in 18 U.S.C. § 3553(a).
Bergmann’s first contention is without merit. This court reviews a denial of a motion
to continue sentencing for abuse of discretion. United States v. Rinaldi, 461 F.3d 922, 928 (7th
Cir. 2006); Zambrella v. United States, 327 F.3d 634, 638 (7th Cir. 2003); United States v.
Robbins, 197 F.3d 829, 847 (7th Cir. 1999). To demonstrate an abuse of discretion in this
context, Bergmann “must show that he was actually prejudiced by the court’s refusal to
grant the continuance.” Rinaldi, 461 F.3d at 928‐29; see also Robbins, 197 F.3d at 847; United
States v. Depoister, 116 F.3d 292, 295 (7th Cir. 1997). Bergmann cannot make this showing.
Because the psychological examination was never performed, there is no evidence on this
record to suggest that a continuance would have inured to Bergmann’s benefit. Indeed, it is
possible that the results of such an examination would have had exactly the opposite effect.
Because Bergmann has failed to offer any proof of prejudice, we find no abuse of discretion
in the district court’s refusal to grant the continuance.
Bergmann also contends that his right to due process was violated because as a
result of the denial of the continuance, his sentence was not based upon accurate
information. Criminal defendants have a due‐process right to be sentenced on the basis of
accurate information. United States v. Tucker, 404 U.S. 443, 447 (1972); United States v. Artley,
No. 07‐4089 Page 5
489 F.3d 813, 821 (7th Cir. 2007). But Bergmann directs this court to no factual inaccuracies
that were before the sentencing court. Indeed, aside from a few issues that were resolved
prior to sentencing, Bergmann did not contest the facts contained in the presentence report.
The district court was therefore entitled to rely entirely on those uncontested facts. See
United States v. Soto‐Piedra, 525 F.3d 527, 530 (7th Cir. 2008).
Bergmann’s real complaint is that the sentencing court lacked relevant testimony
about his likelihood of recidivism. But relief is only warranted where the information
before the sentencing court was inaccurate, not where it is arguably incomplete. See United
States v. Jones, 454 F.3d 642, 652 (7th Cir. 2006); see also United States ex rel. Welch v. Lane,
738 F.2d 863, 865 (7th Cir. 1984) (noting that under Tucker the information must be both
“false” and “relied on” in passing sentence). Bergmann directs this court to no authority
suggesting that defendants have a due‐process right to be sentenced on the basis of
complete information—and with good reason. The information before a sentencing court is
necessarily a summation. To hold that due‐process requires a sentencing court to consider
everything would both require the impossible and contradict Supreme Court precedent. See
Tucker, 404 U.S. at 446 (noting the sentencing judge has “largely unlimited” discretion in
determining the kind of information to consider and the source from which it may come).
Because Bergmann does not suggest that his sentence was the product of any
misinformation, his argument that he was denied due process must fail.
Also without merit is Bergmann’s contention that the district court did not
adequately consider the statutory sentencing factors. Specifically, he maintains that the
court did not adequately consider whether the sentence imposed created an unwarranted
disparity and that it was greater than necessary to comply with the statutory goals.
Whether the district court followed the correct procedures for imposing sentence
under the advisory guidelines regime is a question of law this court reviews de novo.
United States v. Tyra, 454 F.3d 686, 687 (7th Cir. 2006). The record must confirm that the
district court gave meaningful consideration to the statutory factors. See United States v.
Dale, 498 F.3d 604, 611‐12 (7th Cir. 2007); United States v. Olivas‐Ramirez, 487 F.3d 512, 517
(7th Cir. 2007). But where the sentence falls within the guidelines range, this court generally
will infer that the district court did so. See United States v. Dean, 414 F.3d 725, 730 (7th Cir.
2005). Although a sentencing court should not completely ignore a relevant consideration
or unduly discount a factor that would warrant a sentence outside of the guidelines range,
see United States v. Blue, 453 F.3d 948, 954 (7th Cir. 2006), neither error occurred here.
Bergmann cites United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005), and Rita v.
United States, 127 S. Ct. 2456 (2007), for the proposition that the sentencing court “must
address all non‐frivolous arguments made by the defendant in the context of § 3553(a).”
No. 07‐4089 Page 6
Bergmann reads Cunningham too broadly. This court has explained that the need for a
district judge “to explain in detail his consideration of the § 3553(a) factors when choosing
to stick with the Guidelines sentence is proportional to the arguments made by the
defendants.” United States v. Spano, 447 F.3d 517, 519 (7th Cir. 2006). That is, “[w]hen the
judge is not presented with much, he need not explain much.” Id.; see also Dean, 414 F.3d at
729. As for Rita, the Supreme Court expressly noted that where a guidelines sentence is
imposed, unless a party contests the appropriateness of any sentence within the guidelines
range—and no party here did—“the judge normally need say no more.” Rita, 127 S. Ct. at
2468.
Bergmann’s two arguments for a sentence at the low end of the guidelines range
were not significant. First, Bergmann contends that his 480‐month sentence was much
longer than those given to other defendants similar to himself and thus created an
unwarranted disparity under § 3553(a)(6). Bergmann suggested that between 2005 and 2007
twenty‐three sentences for distributing child pornography were upheld on appeal. Twenty
of those sentences were of 240 months or less, and of the three sentences greater than 240
months that were upheld, those defendants were producing child pornography in addition
to distributing it and failed to accept responsibility as well. As the government correctly
observes, however, Bergmann’s sentence was driven largely by his conviction for sexually
assaulting a minor, which increased his statutory maximum to 480 months; otherwise the
statutory maximum is 240 months. See 18 U.S.C. § 2252(b)(1). Bergmann did not reveal to
the sentencing court how many—if any—of the cases he cited involved defendants who
were exposed to the higher statutory maximum. Additionally, Bergmann’s analysis is not
in the record. He neither provided a list of the cases he relied upon, nor did he discuss
whether he considered adjustments other than acceptance of responsibility. The purported
disparity, therefore, was unsubstantiated, and so the district court was not required to
comment upon it.
Bergmann also submits that the district court erred in failing to respond to his
argument that 480 months was greater than necessary under § 3553(a) because civil‐
commitment procedures were available to protect the public, should it be necessary, at the
conclusion of his prison sentence. Bergmann does not identify what civil‐commitment
procedures he believes would be available, but 18 U.S.C. § 4246 authorizes district courts to
commit prisoners whose sentences are about to expire if the court finds by clear and
convincing evidence that the prisoner “is presently suffering from a mental disease or defect
as a result of which his release would create a substantial risk of bodily injury to another
person.” 18 U.S.C. § 4246(d).
There are a number of problems with this line of argument. First, as a general
matter, civil commitment is not punitive, see Kansas v. Hendricks, 521 U.S. 346, 361 (1997), so
No. 07‐4089 Page 7
it seems odd to characterize it as a kind of “sentence” that the court could consider under
§ 3553(a)(3). Second, there is no evidence in the record that Bergmann has any mental
disease or defect. Bergmann has refused to turn over medical‐treatment records, and the
psychological examination he hoped to complete prior to sentencing was never performed.
Assuming Bergmann had such a disease, to suggest that he will be “presently” suffering
from it at the conclusion of his sentence is rank speculation. Even if these conditions were
satisfied, in order to qualify for civil commitment, Bergmann’s release would have to
“create a substantial risk of bodily injury to another.” This, too, is entirely speculative. In
any event, the fact that civil commitment might be possible in the future is not a
consideration that compels a sentence below the guidelines range.
Both of Bergmann’s arguments for a sentence below the guidelines range lacked the
necessary factual predicates to make them relevant considerations. The district court,
therefore, was entitled to disregard them. And because the sentence imposed was within
the guidelines range, we will infer that the § 3553(a) factors were given meaningful
consideration. The sentence is presumed reasonable, see Rita, 127 S. Ct. at 2468; United States
v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005), and Bergmann has not rebutted that
presumption.
AFFIRMED.