Argued May 19, 2014
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:09-cr-00082-JVB-PRC-1 - Joseph S. Van Bokkelen, Judge.
Jill R. Koster, Office of the United States Attorney, Hammond, IN, Sonja M. Ralston, Department of Justice, Washington, DC, for Plaintiff-Appellee.
Visvaldis P. Kupsis, Law Office of Visvaldis P. Kupsis, Valparaiso, IN, for Defendant-Appellant.
Before ROVNER, WILLIAMS, and TINDER, Circuit Judges.
Rovner, Circuit Judge.
Randall Ray Fletcher, Jr. pled guilty to a
five-count indictment charging him with
one count of producing, two counts of receiving, and two counts of possessing child pornography, all occurring over a seven-year period. The district court sentenced him to a thirty-year term of imprisonment, followed by a lifetime of supervised release. Because his crimes spanned a range of years during which the guidelines for child pornography offenses underwent significant changes, his sentencing posed complex calculations and raised potential constitutional problems. We conclude that any errors the court made in calculating the guidelines sentence for Fletcher were harmless and we therefore affirm.
In 2002, Fletcher was several years into a term of probation for conspiracy to commit murder when he became the subject of an investigation into child pornography. A July 4, 2002 search of his home resulted in the seizure of dozens of printed photographs of child pornography as well as more than two hundred compact discs, seventy-five floppy disks and a computer hard drive. A warrant was obtained to search the electronic media, and the computer and discs were forwarded to the Indiana State Police for a forensic examination. But for reasons not apparent from the record, the Indiana State Police never conducted that examination. Instead, the misdemeanor state charges that were initially brought against Fletcher for possession of child pornography were dropped, and the computer and discs remained untouched in the custody of the State Police for several years.
In October 2008, the Indiana State Police referred the investigation to Immigration and Customs Enforcement (" ICE" ) Special Agents who are experts in investigating child exploitation offenses. In January 2009, those agents obtained from local authorities the printed photographs that had been confiscated in 2002. They also secured a new search warrant for the electronic media that had been seized in 2002 and held by the Indiana State Police in the intervening years. Ultimately, that search uncovered thousands of photographs and videos of child pornography, including approximately 150 photographs that Fletcher took of his own then-seven-year-old daughter in 2002. The discovery of those images in 2009 led to a three-count federal indictment for producing, receiving and possessing child pornography. After Fletcher was arrested, law enforcement obtained additional search warrants for computers and electronic storage devices discovered in his 2009 living quarters within the home of his aunt and uncle. A search of those devices revealed that, between 2004 and 2009, Fletcher had amassed a new electronic collection of more than 400,000 pictures and videos depicting child pornography. A superseding indictment added two counts for receiving and possessing this new collection.
Both the timing and the nature of the charges are relevant to the sentencing issues posed, and so we briefly summarize the five-count indictment here. Count I alleged that, on or about February 28, 2002, Fletcher induced his daughter (referred to in the pleadings and briefs as " MM" ) to engage in sexually explicit conduct for the purpose of producing a visual depiction of that conduct, in violation of 18 ...