In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1862

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOHN F. LOVAAS,

Defendant-Appellant.



Appeal from the United States District Court
for the Western District of Wisconsin.
No. 99-CR-107--Barbara B. Crabb, Judge.


Argued January 10, 2001--Decided March 1, 2001



      Before RIPPLE, KANNE and WILLIAMS, Circuit Judges.

      RIPPLE, Circuit Judge. John Lovaas pleaded
guilty to two counts of transporting and
possessing material that depicted minors engaged
in sexually explicit conduct. The district court
sentenced Mr. Lovaas to 87 months’ imprisonment;
Mr. Lovaas now seeks review of that sentence. For
the reasons set forth in the following opinion,
we affirm the judgment of the district court.

I
BACKGROUND

      Beginning in September 1999, an individual using
the name "riverboy 77" exchanged e-mail messages
and attachments (from his home computer in
Wisconsin) with "rory14," a New Hampshire law
enforcement agent posing as a 14-year-old boy.
The first message, sent on September 4, 1999,
stated, "nice pic of yourself. Got any of you in
your undies? sure like to see you." Riverboy 77
continued to communicate with rory14 and sent him
an image of his face and four other pictures of
himself. On September 17, 24, and 27, 1999,
riverboy 77 sent rory14 a number of images
depicting young boys displaying their genitals or
engaging in oral sex. Riverboy 77 also mailed
rory14 a pair of underwear and requested that
rory14 send a pair to a post office box in
Beloit, Wisconsin.
      The agent determined that the post office box
was rented by Mr. Lovaas and forwarded this
information to the Beloit Police Department. The
police contacted Mr. Lovaas’ wife at work and,
after showing her the photograph of her husband
and advising her of the investigation, received
permission to search her home.

      Mr. Lovaas arrived home during the search and
told the officers where he hid his collection of
child pornography. The officers seized several
computer disks and videotapes. In total, Mr.
Lovaas was found to possess approximately 1,800
images of minors engaging in sexually explicit
activity.

      After placing Mr. Lovaas under arrest and
advising him of his rights, the police asked Mr.
Lovaas whether he ever had engaged in sexual
activity with juvenile males. Mr. Lovaas admitted
that he had engaged in sexual contact in the past
and gave the detectives the names of two boys. He
then refused to answer more questions. One of the
boys was contacted, and he confirmed that Mr.
Lovaas had abused him 26 years earlier when the
boy was 14 or 15. The individual identified two
other boys that Mr. Lovaas likely had abused.

      Mr. Lovaas was indicted on one count of enticing
a minor to engage in a prohibited sexual act, 18
U.S.C. sec. 2422(b); one count of transmitting
material depicting minors engaged in sexually
explicit activity, 18 U.S.C. sec. 2252(a)(1); and
one count of possessing materials containing such
depictions, 18 U.S.C. sec. 2252(a)(4)(B). Mr.
Lovaas pleaded guilty to the latter two counts.
The district court accepted the plea and ordered
the preparation of a presentence report, which
recommended, pursuant to the United States
Sentencing Guidelines ("Guidelines"), that the
court increase Mr. Lovaas’ offense level by five
to reflect a "pattern of activity involving the
sexual abuse or exploitation of a minor."
U.S.S.G. sec. 2G2.2(b)(4).

      Mr. Lovaas filed a motion for a downward
departure from the Guidelines. He submitted that
he should receive the departure under U.S.S.G.
sec.sec. 5K2.16 and 5K2.0 for his voluntary
disclosure of his past instances of sexual abuse.
He also contended that the five-level increase
for past sexual abuse was inconsistent with the
concept of "relevant conduct" utilized in the
Guidelines.

      The district court, following the recommendation
of the probation department, applied the five-
level increase provided in U.S.S.G. sec.
2G2.2(b)(4). Although the "two or more separate
instances of sexual abuse did not occur during
the offense or its relevant conduct," the court
explained, "Application Note 1 makes it clear the
upward adjustment was intended to be applied in
cases such as defendant’s." R.17 at 7.

      The district court did not grant Mr. Lovaas the
downward departure under U.S.S.G. sec. 5K2.16; it
was not "persuaded that defendant’s disclosure of
previous criminal conduct was not motivated by
his belief that the conduct would be discovered
inevitably in the course of the investigation."
Id. The court similarly refused to depart
downward under U.S.S.G. sec. 5K2.0, finding that
the "factors cited by defendant are not
extraordinary enough to take his case outside the
heartland of cases envisioned by the Sentencing
Commission in formulating the guidelines." Id.

II
DISCUSSION

      Mr. Lovaas contends that the district court
erred in calculating his sentence. Specifically,
he contests the court’s decision to (1) deny him
a downward departure for voluntarily disclosing
crimes that the Government might not otherwise
have discovered and (2) increase his offense
level by five to account for a pattern of
activity of sexual abuse./1 We shall address
each in turn.

A.   Downward Departure

      Because he informed authorities of prior sexual
contact with juveniles, Mr. Lovaas argues that he
should have received a downward departure
pursuant to U.S.S.G. sec. 5K2.16. Under that
section, if a defendant voluntarily discloses
crimes that the government might not otherwise
have discovered, he may be eligible for a
reduction in offense level.

      We have no jurisdiction to review a district
court’s discretionary refusal to grant a downward
departure. See United States v. Aerts, 121 F.3d
277, 279 (7th Cir. 1997); United States v.
Cureton, 89 F.3d 469, 474 (7th Cir. 1996). We
can, however, review a district court’s
determination that it lacked the legal authority
to depart. See Cureton, 89 F.3d at 474./2 To
paraphrase now-Chief Judge Flaum’s construct in
Aerts, we can review the district court’s legal
determination as to whether U.S.S.G. sec. 5K2.16
applies to cases such as Mr. Lovaas’. See Aerts,
121 F.3d at 279.

      Here, the district court determined that the
disclosure made by the defendant was not the kind
contemplated by the Sentencing Commission when it
promulgated U.S.S.G. sec. 5K2.16. In United
States v. Belser, 86 F.3d 745 (7th Cir. 1996), we
held that a departure under U.S.S.G. sec. 5K2.16
is warranted only when (1) the defendant
voluntarily disclosed the existence of, and
accepted responsibility for, the offense prior to
its discovery; and (2) the offense was unlikely
to have been discovered otherwise. See id. at
747. The second prong applies when a "defendant
is motivated by guilt and discovery is unlikely."
Id. Indeed, the plain wording of the guideline so
provides./3 The district court concluded that it
was not "persuaded that defendant’s disclosure of
previous criminal conduct was not motivated by
his belief that the conduct would be discovered
inevitably in the course of the investigation."
R.17 at 7. As the plain wording of the guideline
and our holding in Belser make clear, a departure
under such circumstances would not be compatible
with the text or purpose of the guideline.
Therefore, the district court was correct in its
legal determination that U.S.S.G. sec. 5K2.16
could not serve as the basis of departure.

      We note, moreover, that, as a matter of law, the
record contained sufficient evidence to permit
the district court to reach the determination
that it did. Although Mr. Lovaas argued that his
confession was motivated by guilt, the district
court found to the contrary. Mr. Lovaas confessed
once the police were searching his home and
asking him whether he ever had sexually assaulted
juvenile males.

      In sum, the district court was correct in its
reading of the guideline and, since its
determination is supported by the record, we
cannot disturb its finding.

B. Five-Level Increase Based on a Pattern
of Activity Involving the Sexual Abuse
or Exploitation of a Minor

      Mr. Lovaas also submits that the court should
not have applied U.S.S.G. sec. 2G2.2(b)(4), which
permits a five-level increase in offense level to
account for a "pattern of activity involving the
sexual abuse or exploitation of a minor." He
argues that the decades-old instances of sexual
misconduct upon which the district court relied
are not relevant conduct for the two counts of
conviction.

      When construing the Guidelines, "we look first
to the plain language, and where that is
unambiguous we need look no further." United
States v. Andreas, 216 F.3d 645, 676 (7th Cir.),
cert. denied, 69 U.S.L.W. 3297 (U.S. Nov. 27,
2000) (No. 00-654). This principle must govern
our decision here. In general, the Guidelines
permit courts to consider, "[u]nless otherwise
specified," relevant conduct in determining
applicable guideline levels. U.S.S.G. sec.
1B1.3(a)./4 Relevant conduct is tied to the
underlying offense and includes all acts
committed during the commission, preparation, or
concealment of that offense. See U.S.S.G. sec.
1B1.3(a)(1).

      The phrase "unless otherwise specified,"
however, permits courts to consider additional
conduct when other provisions of the Guidelines
set forth more specific rules. One of these more
specific rules is U.S.S.G. sec. 2G2.2, which
mandates a five-level increase for a pattern of
sexual activity. The commentary to U.S.S.G. sec.
2G2.2 makes clear that, in determining whether a
pattern of activity involving the sexual abuse or
exploitation of a minor is present, a court must
consider conduct that would not be considered
relevant conduct in other circumstances.
Specifically, the application note defines
"pattern of activity" as encompassing two or more
"separate instances of the sexual abuse or sexual
exploitation of a minor . . . whether or not the
abuse or exploitation (A) occurred during the
course of the offense, (B) involved the same or
different victims, or (C) resulted in a
conviction for such conduct." U.S.S.G. sec.
2G2.2, cmt. n.1. Indeed, the Sentencing
Commission itself has explained that "the conduct
considered for purposes of the ’pattern of
activity’ enhancement is broader than the scope
of relevant conduct typically considered under
sec. 1B1.3." U.S. Sentencing Commission
Guidelines Manual, App. C at 373./5 We give this
determination deference. See Stinson v. United
States, 508 U.S. 36, 44-45 (1993) (noting the
broad deference given to Sentencing Commission
interpretations of the Guidelines).

      Mr. Lovaas, although acknowledging that a
sentencing court may consider unrelated instances
of sexual abuse, maintains that such
consideration should be part of the criminal
history calculation and not the offense level. We
believe, however, that the Sentencing Commission
acted well within its authority in promulgating
the commentary to U.S.S.G. sec. 2G2.2 that we
examined earlier. Thus, we must give considerable
deference to its decision. See Stinson, 508 U.S.
at 44-45.
Conclusion

      The district court committed no legal error in
determining Mr. Lovaas’ sentence. Accordingly,
the judgment of the district court is affirmed.

AFFIRMED
/1 Mr. Lovaas does not contest on appeal the
district court’s refusal to grant him a downward
departure under U.S.S.G. sec. 5K2.0.

/2 This authority is based upon the limited
jurisdictional grant of 18 U.S.C. sec. 3742(a),
which permits us to review sentences in only four
circumstances: where the sentence (1) is in
violation of the law; (2) is the result of an
incorrect application of the Guidelines; (3)
exceeds the sentence specified in the Guidelines;
or (4) is for an offense for which there is no
guideline, and the sentence is plainly
unreasonable.

/3 U.S.S.G. sec. 5K2.16 indicates:

If the defendant voluntarily discloses to
authorities the existence of, and accepts
responsibility for, the offense prior to the
discovery of such offense, and if such offense
was unlikely to have been discovered otherwise, a
departure below the applicable guideline range
for that offense may be warranted. For example, a
downward departure under this section might be
considered where a defendant, motivated by
remorse, discloses an offense that otherwise
would have remained undiscovered. This provision
does not apply where the motivating factor is the
defendant’s knowledge that discovery of the
offense is likely or imminent, or where the
defendant’s disclosure occurs in connection with
the investigation or prosecution of the defendant
for related conduct.

/4 U.S.S.G. sec. 1B1.3 provides, in pertinent part:

Unless otherwise specified, (i) the base offense
level where the guideline specifies more than one
base offense level, (ii) specific offense
characteristics and (iii) cross references in
Chapter Two, and (iv) adjustments in Chapter
Three, shall be determined on the basis of the
following:

(1) (A) all acts and omissions
committed, aided, abetted, counseled, commanded,
induced, procured, or willfully caused by the
defendant; and

(B) in the case of a jointly undertaken
criminal activity (a criminal plan, scheme,
endeavor, or enterprise undertaken by the
defendant in concert with others, whether or not
charged as a conspiracy), all reasonably
foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal
activity,
that occurred during the commission of the
offense of conviction, in preparation for that
offense, or in the course of attempting to avoid
detection or responsibility for that offense;

(2)   solely with respect to offenses of
a character for which sec. 3D1.2(d) would require
grouping of multiple counts, all acts and
omissions described in subdivisions (1)(A) and
(1)(B) above that were part of the same course of
conduct or common scheme or plan as the offense
of conviction;

(3)   all harm that resulted from the
acts and omissions specified in subsections
(a)(1) and (a)(2) above, and all harm that was
the object of such acts and omissions; and

(4)   any other information specified in
the applicable guideline.

/5 The amendment to U.S.S.G. sec. 2G2.2 responded in
part to United States v. Chapman, 60 F.3d 894,
901 (1st Cir. 1995), which had held that the
"pattern of activity" enhancement was
inapplicable to past sexual abuse or exploitation
unrelated to the offense of conviction. The
Sentencing Commission explained that the
revision:

clarifies that the "pattern of activity" may
include acts of sexual abuse or exploitation that
were not committed during the course of the
offense or that did not result in a conviction.
This revision responds in part to the holding in
Chapman . . . . The amended language expressly
provides that such conduct may be considered.

U.S. Sentencing Commission Guidelines Manual,
App. C at 373.
