In the
United States Court of Appeals
For the Seventh Circuit

No. 01-3700

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANDREW C. POLSON,

Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Wisconsin.
No. 01 CR 53--John C. Shabaz, Judge.

ARGUED FEBRUARY 28, 2002--DECIDED March 29, 2002


  Before RIPPLE, MANION and EVANS, Circuit
Judges.

  RIPPLE, Circuit Judge. Having pleaded
guilty to one count of transporting child
pornography in interstate commerce in
violation of 18 U.S.C. sec. 2252A(a)(1),
Mr. Polson now appeals the application of
an enhancement to his sentence as based
on unreliable information. For the
reasons set forth in the following
opinion, we affirm the judgment of the
district court.

I

BACKGROUND

  After the FBI discovered that he had
been disseminating pornographic pictures
of minors over the internet, Mr. Polson
pleaded guilty to one count of
transporting child pornography in
interstate commerce in violation of 18
U.S.C. sec. 2252A(a)(1). The district
court determined Mr. Polson’s offense
level under the United States Sentencing
Guidelines to be 32, which included a
base offense level of 17 for "Trafficking
in Material Involving the Sexual
Exploitation of a Minor," U.S.S.G. sec.
2G2.2(a), and several upward adjustments
relating to the particular circumstances
of Mr. Polson’s offense. The upward
adjustments included a five-level
enhancement based on the district court’s
determination that Mr. Polson had
"engaged in a pattern of activity
involving the sexual abuse or
exploitation of a minor." U.S.S.G. sec.
2G2.2(b)(4). The district court applied
this enhancement despite Mr. Polson’s
objection that it was based on unreliable
information.

  At the sentencing hearing, the
Government had presented evidence of
three alleged instances of sexual abuse.
The first incident occurred in February
1987. According to a police report
appended to the Presentence Report (PSR),
a mother reported the possible sexual
assault of her four-year-old daughter by
her babysitter, Andrew Polson, who was
then fifteen years old. The mother
reported that her daughter had told her
that Mr. Polson had touched her
inappropriately while he babysat her the
previous evening. Her daughter had
pointed to the front of her pelvic area
and said that Mr. Polson had touched her
there with his finger. The police made an
audio recording of the mother’s
statement, the transcript of which the
Government introduced during the
sentencing hearing. For this incident, a
juvenile court convicted Mr. Polson of
first-degree sexual assault and placed
him on supervision for one year.

  The second instance of sexual abuse
allegedly occurred around the same time
as the first and consisted of similar
misconduct involving the same four-year-
old girl. The only evidence of it,
however, was the mother’s statement
during the investigation of the first
incident that she had asked her daughter
if Mr. Polson previously had touched her
in the same way and that her daughter had
indicated that he had. Mr. Polson had
babysat for the child four or five times
before./1

  The third instance of sexual abuse
allegedly occurred sometime in the early
1990s. According to the police reports
appended to the PSR, an eight-year-old
girl told police in April 1997 that Mr.
Polson had "picked at" her genitalia
while he was babysitting several years
before. R.25, Addendum to the PSR,
Incident Report No. 1997-000970-I, at 2.
The mother of the girl told police that
Mr. Polson had babysat her daughter four
or five years earlier. The girl therefore
would have been three or four years old
at the time of the incident. A police
detective who had participated in the
1997 investigation of this incident
testified at the sentencing hearing. The
detective related that he had interviewed
Mr. Polson after receiving the complaint
and that he had told Mr. Polson that he
was investigating "a situation that
occurred while babysitting." R.27, at 12.
The detective had not mentioned the name
of the child, but Mr. Polson nevertheless
volunteered that the complaint must have
been in regard to an incident that he
remembered occurring while babysitting
the girl who had reported the incident.
Mr. Polson explained that he had been
babysitting the girl while she was going
through "potty training" and that she had
had a diaper rash in her vaginal area,
which he had attempted to treat by
applying Neosporin. Id. According to the
detective, Mr. Polson explained that he
had later wiped off the cream because it
appeared to be burning the child. The
detective further testified that Mr.
Polson had appeared very nervous during
the interview and that Mr. Polson’s voice
and hands were shaky. In the detective’s
opinion, Mr. Polson was not truthful
during the interview and had withheld
information.

  The district court determined that the
Government had established by a
preponderance of the evidence that the
first instance of sexual abuse had
occurred and that the same conduct had
occurred at least one other time,
although the court could not ascertain on
the record how many other times it had
occurred. With regard to the third
instance, the court determined that Mr.
Polson’s admission that he had applied
Neosporin to the girl’s rash indicated
that he had touched the girl in the way
that she later described. The court also
stated that it did not accept Mr.
Polson’s explanation of the incident. The
district court therefore applied the
five-level enhancement and sentenced Mr.
Polson to 151 months of imprisonment, the
maximum allowed under the Sentencing
Guidelines. Mr. Polson appeals only the
application of the five-level enhancement
for engaging in a "pattern of activity
involving the sexual abuse or
exploitation of a minor." U.S.S.G. sec.
2G2.2(b)(4).
II

DISCUSSION

  A "pattern of activity," as defined by
the Sentencing Guidelines, consists of
two or more instances of sexual abuse or
exploitation of a minor. See U.S.S.G.
sec. 2G2.2, Application Note 1. "’Sexual
abuse or exploitation’ does not include
trafficking in material relating to the
sexual abuse or exploitation of a minor."
Id. Therefore, for the enhancement to
apply to Mr. Polson’s sentence, there
must be evidence of at least two
instances--not including the offense for
which he has been convicted--in which Mr.
Polson engaged in the sexual abuse or
exploitation of a minor.

  Moreover, the evidence of the two
instances must be reliable, because a
defendant is entitled to be sentenced on
the basis of reliable information. United
States v. Francis, 39 F.3d 803, 810 (7th
Cir. 1994). The Sentencing Guidelines
provide that during sentencing "the court
may consider relevant information without
regard to its admissibility under the
rules of evidence applicable at trial,
provided that the information has
sufficient indicia of reliability to
support its probable accuracy." U.S.S.G.
sec. 6A1.3(a). Mr. Polson characterizes
the evidence supporting the sentence
enhancement as unreliable because it
consists of multiple layers of
uncorroborated hearsay. A district court
may consider hearsay evidence in
determining a defendant’s sentence, but
the hearsay evidence must be reliable.
See United States v. Barnes, 117 F.3d
328, 337 (7th Cir. 1997); Francis, 39
F.3d at 810. We review a district court’s
determination during sentencing of the
reliability of hearsay evidence for an
abuse of discretion. See Barnes, 117 F.3d
at 337.

  The general principles that govern the
consideration of contested evidence in a
sentencing proceeding are well
established. A district court cannot rely
on inaccurate information in sentencing a
defendant; a sentence based on inaccurate
information must be set aside. See United
States ex rel. Welch v. Lane, 738 F.2d
863, 865 (7th Cir. 1984). "Where the
sentencing court relies on information of
contested accuracy, appellate courts face
a more difficult task in reviewing a
challenge to the sentence." Id. at 865
n.3. A sentencing court is entitled to
consider a broad range of information in
the sentencing process. Due process
requires, however, that the sentencing
court afford the defendant a meaningful
opportunity to rebut contested evidence.
"If the contested information is
obviously unreliable, the appellate court
may simply require that the defendant be
resentenced without reliance on the
challenged information." Id. On the other
hand, when the evidence submitted by the
prosecution at trial contains "sufficient
indicia of reliability," the defendant
must come forward with some evidence
other than an unsupported denial to
establish its inaccuracy. See United
States v. Coonce, 961 F.2d 1268, 1280
(7th Cir. 1992) (stating that, with
regard to the accuracy of sentencing
evidence, "once it has initially
presented evidence with sufficient
indicia of reliability, the government
need not go further to meet its burden of
persuasion until the defendant has made
some showing calling the alleged facts
into question").

  We cannot say that the district court
abused its discretion in determining that
the evidence before it was sufficiently
reliable. With respect to the first
incident, Mr. Polson does not contest the
reliability of the evidence; Mr. Polson
previously was convicted of first degree
sexual assault with respect to that
incident. Mr. Polson maintains, however,
that the evidence of the second instance
is unreliable because it consists only of
multiple layers of uncorroborated
hearsay. It is true that the evidence is
multiple hearsay; the daughter told the
mother who told the police who finally
testified. The mother’s interview with
the police was recorded, however, and the
transcript of the interview was admitted
into evidence at the sentencing hearing.
Mr. Polson has not suggested any reason
to doubt the veracity of either the
police officers or the mother. The
evidence of the second incident may be
suspect, however, because it consists
ultimately in the four-year-old
daughter’s reply to her mother’s query
whether Mr. Polson had touched the
daughter inappropriately on an occasion
other than the one of which he was
convicted. The district court recognized
the weakness of this evidence and
determined that, although it was reliable
to the extent of establishing one
additional instance of sexual assault, it
was not sufficient to establish more than
one. The evidence is indeed weak.
However, given the district court’s
selective scrutiny of the evidence, we
find it difficult to say that its
acceptance of the evidence to establish
one additional instance amounted to an
abuse of discretion.

  In any event, the Government need
establish only two instances of sexual
abuse to show "a pattern of activity,"
and the evidence supporting the third
instance bears sufficient indicia of
reliability. An eight-year-old reported
that Mr. Polson had "picked at" her
genitalia with his finger while he had
been babysitting her several years
before. R.25, Addendum to the PSR,
Incident Report No. 1997-000970-I, at 2.
When the police interviewed Mr. Polson,
he immediately recounted an incident with
that same girl, even though the police
had not told him the identity of the girl
who had reported the incident. Mr. Polson
explained that he merely had applied
Neosporin to a rash, but the district
court did not credit the explanation. The
record contains a factual basis for the
district court’s determination. As the
Government notes, although Mr. Polson did
not inform the girl’s parents of the
incident, he remembered it immediately
six years later. The district court also
credited the testimony of the police
detective who testified that Mr. Polson
had been extremely nervous and, in the
detective’s opinion, had not been telling
the truth. The evidence of the incident
was therefore corroborated by Mr.
Polson’s own statement to the police.
Thus, the district court did not abuse
its discretion in determining the
sentencing evidence to be reliable, and
the sentence enhancement was appropriate.


Conclusion

  Because the district court did not abuse
its discretion in determining that
reliable information supported the five-
level enhancement, we affirm its
judgment.

AFFIRMED
FOOTNOTE

/1 The mother made the statement in the recorded
interview, the transcript of which was before the
court.
