                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 03-2189
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                 v.

VINCENT MCCAFFREY,
                                            Defendant-Appellant.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
             No. 02-CR-591—John W. Darrah, Judge.
                          ____________
ARGUED SEPTEMBER 13, 2005—DECIDED FEBRUARY 13, 2006
                   ____________



  Before BAUER, MANION, and WILLIAMS, Circuit Judges.
  WILLIAMS, Circuit Judge. Vincent McCaffrey, a former
priest, pled guilty to receiving and possessing child por-
nography that was transported in interstate commerce.
After adding numerous enhancements, the court im-
posed a sentence of 240 months. McCaffrey, challenging the
sentence, claims that the district court improperly double-
counted the same behavior to justify two separate upward
departures. We disagree. We also find that the district court
properly based his sentence on the trafficking guideline,
U.S.S.G. § 2G2.2, rather than a simple possession guideline,
U.S.S.G. § 2G2.4. Finally, we find that the district court
2                                               No. 03-2189

committed no error under United States v. Booker, 543 U.S.
220, 125 S. Ct. 738 (2005).


                    I. BACKGROUND
  Vincent McCaffrey became a Catholic priest in 1978.
During his assignments as the priest in charge of youth
groups, choirs, and altar boys in a number of parishes, he
sexually molested many of the young boys under his
supervision on hundreds of separate occasions. During
his career, McCaffrey received treatment for alcoholism and
for psychiatric problems, including his sexual attraction
to adolescents. While the treatment for alcoholism was
successful, his sexual disorder persisted. The Archdiocese
required McCaffrey to cease clerical activity in 1991, and he
formally resigned from the priesthood in 1993. He has held
various jobs since that time, most recently as an insurance
agent and as manager of a gas station.
  Beginning in 1999, McCaffrey purchased memberships to
websites from which he downloaded child pornography. On
June 11, 2002, customs agents searched McCaffrey’s home
and discovered numerous prints, computer files, and disks
containing images of child pornography. Several of the
images depicted minors under twelve and some depicted
sado-masochistic conduct. On August 6, 2002, the govern-
ment filed an information charging McCaffrey with one
count of receiving an image of child pornography that was
transported in interstate commerce in violation of 18 U.S.C.
§ 2252A(a)(2)(A) (Count I) and one count of possessing
images of child pornography that were transported in
interstate commerce in violation of 18 U.S.C.
§ 2252A(a)(5)(B) (Count II). On September 12, 2002,
McCaffrey pled guilty to both counts without a plea agree-
ment.
 In the presentence report, the probation officer recom-
mended a base offense level of 17, pursuant to U.S.S.G.
No. 03-2189                                                   3

§ 2G2.2. She also recommended the following enhance-
ments: two levels for possessing pictures of a prepubes-
cent minor; four levels for possessing images depicting
sadistic or masochistic conduct; two levels for using a
computer in the commission of the offense; and five
levels for engaging in a pattern of activity involving the
sexual abuse or exploitation of a minor. The report recom-
mended that McCaffrey be placed in criminal history
category one.1
  The government filed two motions for upward depar-
ture. In the first, it argued for a five-level enhancement
for McCaffrey’s pattern of sexual abuse. In the second, it
sought a five-level increase in McCaffrey’s criminal history
category because category one understated the serious-
ness of his past criminal conduct and failed to reflect
accurately his likelihood of recidivism. In support of its
sentencing position, the government filed extensive docu-
mentation related to McCaffrey’s history of sexually
abusing minors, including settlement agreements and
witness statements. McCaffrey opposed the pattern en-
hancement on the ground that the instances of molestation
were unrelated to the charged conduct. He also opposed the
increase in his criminal history category, arguing that he
was unlikely to re-offend because he was no longer a priest
and had not committed abuse for several years.
  On December 9, 2002, the court held an evidentiary
hearing pursuant to the government’s motions. Witnesses
at the hearing included five of McCaffrey’s victims, each
of whom gave wrenching testimony that McCaffrey had
betrayed, manipulated, and abused them, negatively
impacting their emotional health and their faith in God.


1
  McCaffrey has never been convicted of any crime, and has never
been charged with any crime stemming from the abuse
he committed during his tenure as a priest.
4                                              No. 03-2189

  Some victims also testified that McCaffrey had used some
form of force in the course of the abuse, such as pulling
them toward him in bed, holding them under water, or
chasing them with his car. One victim testified that
McCaffrey took nude photographs of him. The court also
heard from McCaffrey’s niece, who recalled seeing her uncle
invite boys into his bed, and from McCaffrey’s former
psychiatrist, Dr. Kelly, who treated McCaffrey with medica-
tion (including hormones to reduce his sex drive) and
psychotherapy. Dr. Kelly felt that McCaffrey sometimes
denied, minimized, or rationalized his behaviors rather
than committing himself fully to treatment. Dr. Kelly
opined that McCaffrey was at risk of committing further
acts if not actively engaged in treatment. McCaffrey
testified that during his time as a priest, he had had about
100 separate sexual contacts with twelve to fourteen minor
boys, and that he had hundreds of sexual contacts with
perhaps 25 other children at other times in his life.
McCaffrey denied that he had ever penetrated a child, used
force against a child, or taken sexual pictures of a child.
Finally, McCaffrey apologized to his victims and promised
to pray for them every day for the rest of his life.
  Following the hearing, the court issued an order granting
the government’s motions for a 5-level enhancement for a
pattern of sexual abuse and for a 5-level increase
in McCaffrey’s criminal history category. The court rejected
McCaffrey’s objections to the enhancements, noting that the
application note to § 2G2.2 makes clear that the pattern
enhancement applies irrespective of whether the earlier
abuse was related to the instant offense, and finding that
both under-representation of criminal history and likelihood
of recidivism justified the increase in McCaffrey’s criminal
history category. See United States v. McCaffrey, No. 02 CR
591 (N.D. Ill. Jan. 30, 2003) (order granting motions for
upward departure). The court further found that this was
not impermissible double-counting of the same conduct,
No. 03-2189                                                  5

since McCaffrey fell within the Application Note to Section
2G2.2 allowing double-counting under some circumstances.
Id. At the sentencing hearing, the court orally granted each
of the government’s earlier motions for upward departures
and otherwise accepted the recommendations in the
presentencing report. The court also granted the govern-
ment’s post-hearing motion for a two-level enhancement for
obstruction of justice because McCaffrey lied to the court
about never using force against his victims. This resulted in
an offense level of 37, with a guidelines range of 360
months to life. However, as this was in excess of the
statutory maximum for McCaffrey’s offenses of conviction,
the court ordered McCaffrey to serve the maximum terms
of 180 months imprisonment on Count I and 60 months on
Count II, to be consecutively served. This appeal followed.


                       II. ANALYSIS
  A. The District Court Did Not Engage in Improper
     “Double-Counting” When It Applied a Pattern En-
     hancement and an Increase in McCaffrey’s Criminal
     History Level.
  We review a district court’s factual findings for clear error
and its application of those facts to the guidelines de novo.
United States v. Turner, 400 F.3d 491, 500 (7th Cir. 2005).
Based on McCaffrey’s admitted history of sexual abuse of
minors, the district court imposed one upward departure
under § 2G2.2(b)(4) for engaging in a pattern of child sexual
abuse and another under § 4A1.3 because the defendant’s
criminal history category of one did not adequately reflect
the seriousness of the defendant’s criminal background.
Both of these departures were based on the same set of
prior acts by the defendant. It is clear that as a general
principle, the same acts by the defendant cannot be used as
the basis for two separate upward departures. United States
v. Lallemand, 989 F.3d 936, 939 (7th Cir. 1993). However,
6                                                 No. 03-2189

prior convictions for sexual abuse may support both an
upward departure for a pattern of sexual abuse against
children under § 2G2.2(b)(4) and an increase in a defen-
dant’s criminal history level under § 4A1.3(e) without
violating the stricture against double-counting:
    [A]n upward departure may be warranted if the
    defendant received a [pattern] enhancement under
    subsection (b)(4) but that enhancement does not
    adequately reflect the seriousness of the sexual
    abuse or exploitation involved. . . . Prior convictions
    taken into account under subsection (b)(4) are also
    counted for purposes of determining criminal
    history points.
U.S.S.G. § 2G2.2, Application Note 2; United States v.
Griffith, 344 F.3d 714, 719 (7th Cir. 2003).
  Whether unprosecuted, but uncontroverted, crimes fall
within the double-counting exception of Application Note 2
appears to be a question of first impression.2 We find that
under the unique circumstances at hand, the evidence of
McCaffrey’s crimes should be considered the equivalent of
convictions. Specifically, in light of McCaffrey’s explicit on-
the-stand confessions during the sentencing phase, corrobo-
rated by extensive victim testimony and contemporaneous
documentary evidence, the acts were proven beyond a
reasonable doubt. Thus, we conclude that the district court
properly used the defendant’s admitted, uncontroverted, and
corroborated acts of abuse to justify two distinct upward
departures from the guidelines.
 This approach is consistent with the intention of the
Guidelines to enable district judges to give extended



2
  United States v. Turchen, 187 F.3d 735 (7th Cir. 1999) upheld
a double enhancement where the defendant had been tried for the
prior crimes, but found not guilty by reason of mental defect.
No. 03-2189                                                 7

sentences to those with a long history of abusing children.
Application Note 2 explains that “an upward departure may
be warranted if the defendant received a [pattern] enhance-
ment under subsection (b)(4) but that enhancement does
not adequately reflect the seriousness of the sexual abuse
or exploitation involved.” Thus, the Guidelines permit
judges to depart upward where the defendant’s history of
abusive behavior is so extensive or so vicious that a five-
level pattern enhancement is inadequate. Under the
circumstances presented by this case, where McCaffrey
sexually molested dozens of children on hundreds of
occasions over the course of decades, and where the abuse
was aggravated by McCaffrey’s exploitation of the trust
families placed in him as a clergyman, the district court
was justified in its conclusion that a five-level pattern
enhancement was insufficient.


  B. The District Court Was Correct to Sentence
     McCaffrey under the Trafficking Guideline instead of
     the Possession Guideline.
  Whether a district court judge sentenced the defen-
dant under the correct guideline is a question of the ap-
plication of law to fact and is reviewed de novo. Turner, 400
F.3d at 500. McCaffrey points to decisions from two sister
circuits holding that end users of child pornography should
be sentenced only under the more lenient possession
guideline, § 2G2.4, and that the harsher trafficking guide-
line, § 2G2.2, should be reserved for those who distribute
material, despite the fact that the language of the traffick-
ing guideline states that “receiving” the material via
interstate transmission is sufficient to warrant the more
severe trafficking penalty. See United States v. Farrelly, 389
F.3d 649, 652 (6th Cir. 2004) (consumer of child pornogra-
phy should be sentenced under § 2.2G2.4); United States v.
Davidson, 360 F.3d 1374, 1377 (11th Cir. 2004) (same). As
8                                                 No. 03-2189

an initial matter, the November 2004 revision of the
Guidelines Manual, which deleted § 2G2.4 by consolidation
with § 2G2.2, may have affected the precedential value of
those cases.3 At any rate, this revision effects no change in
the law of this circuit, as even before the revision, we
consistently held that a defendant who receives child
pornography through interstate commerce must be sen-
tenced under the trafficking guideline rather than the
possession guideline, even in the absence of evidence of
distribution or intent to distribute. United States v. Myers,
355 F.3d 1040 (7th Cir. 2004); United States v. Malik, 385
F.3d 758 (7th Cir. 2004).
  McCaffrey’s entire argument is that this court should
revisit and reject the rule adopted by two of its own panels
in favor of the interpretation preferred in the Eleventh
Circuit, which found that the trafficking statute applied
only to those who disseminated the illegal materials, and
not to those who were solely the end consumers. In contrast,
we have previously held that because the trafficking statute
explicitly encompasses receipt of materials, end consumers
who purchase material for their own use fall within its
bounds. Id. We see no need to revisit the holding here. The
district court did not err when it sentenced McCaffrey
under § 2.2G2, the harsher trafficking guideline.




3
  The Sixth Circuit recently repudiated its decision in Farrelly
because of the revised guideline. United States v. Williams,
411 F.3d 675, 678 n. 1 (6th Cir. 2005).
No. 03-2189                                                9

  C. The District Court’s Sentence Was Reasonable in
     Light of Booker, and No Remand Is Necessary under
     Paladino.
   McCaffrey also contends that the Supreme Court’s
decision in United States v. Booker, 543 U.S. 220, 125 S. Ct.
738 (2005), necessitates resentencing because his sen-
tence was increased on the basis of facts not proven to
a jury beyond a reasonable doubt or admitted by him.
Notwithstanding McCaffrey’s arguments to the contrary,
Booker does not stand for a defendant’s right to have
every element of every sentence enhancement proved to
a jury beyond a reasonable doubt; rather, it transformed the
Federal Sentencing Guidelines from a mandatory frame-
work to an advisory one. Booker, 125 S. Ct. at 738. Because
McCaffrey raises this contention for the first time on
appeal, our review is for plain error. United States v. Lee,
399 F.3d 864 (7th Cir. 2005). “In order to show plain error
the defendant must establish, among other things, that the
error ‘affected substantial rights’—which is to say that it
made the defendant worse off.” Id.
   In order to answer that question, we ask whether the
sentencing judge, operating under the discretion permitted
by Booker, might have sentenced McCaffrey any differently.
If we can be certain that he would have imposed the same
sentence given greater freedom, then no error was commit-
ted, and no remand for resentencing is required. Id.
  In this case, there is no doubt that the district court
was inclined to sentence McCaffrey to the longest pos-
sible prison term. The guidelines formula, with its multiple
enhancements and upward departures, resulted in a
sentencing range of 360 months to life. As he could not
sentence McCaffrey to more than 5 years for possession and
15 years for trafficking, the judge sought to impose consecu-
tive sentences and asked the government for supplemental
authority regarding his power to do so. Upon receiving the
10                                               No. 03-2189

government’s supplemental filing, the judge amended his
original sentencing order to provide that the sentences
should be consecutive. In amending his original sentencing
order, the judge explicitly stated that he was imposing the
maximum sentence of consecutive terms of 180 months and
then 60 months in order “to produce a combined sentence
that is as near as possible to the total punishment allowed
under the statute,” i.e., 360 months to life. Transcript of
Resentencing at 5, McCaffrey (No. 02 CR 591) (Feb. 6,
2004).
  Thus, there is no question about what the judge would
have done had he known the guidelines were advisory; he
would have put McCaffrey away for as long as he could. An
indication of how strongly the judge felt about the severity
of McCaffrey’s conduct can be found in the judge’s com-
ments at the sentencing hearing:
     I had the opportunity to hear these [victims] speak,
     and their testimony was as stark and as tragic and
     as horrifying as anything I’ve heard in a courtroom.
     . . . [T]he defendant paid for a membership to
     receive photographs of children being molested,
     abused, and otherwise sexually exploited; in so
     doing, the defendant supported that conduct and
     supported the people that inflict that kind of con-
     duct on young children . . . McCaffrey did this to
     fulfill his own sexual needs. . . . Vincent McCaffrey
     committed these acts which were a serious violation
     of the trust of a child, and he took from these
     children maybe a child’s most precious attribute,
     innocence.
Transcript of Sentencing Hearing at 17, 40, McCaffrey (No.
02 CR 591) (Jan. 30, 2003). Under the circumstances
here, it is not necessary to remand the case under Paladino
and Lee.
No. 03-2189                                            11

                  III. CONCLUSION
  For the foregoing reasons, we AFFIRM the ruling of the
district court.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                  USCA-02-C-0072—2-13-06
