                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-2563
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District Missouri.
Jack Wayne Rogers,                       *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: April 13, 2005
                                  Filed: September 13, 2005
                                   ___________

Before LOKEN, Chief Judge, FAGG and BYE, Circuit Judges.
                              ___________

LOKEN, Chief Judge.

       Jack Wayne Rogers pleaded guilty to two counts of possession of child
pornography in violation of 18 U.S.C. § 2252(a)(4)(B) & (b)(2); five counts of
distribution of child pornography in violation of 18 U.S.C. § 2252(a)(1) & (b)(1); and
three counts of distribution of obscene materials in violation of 18 U.S.C. § 1462. At
a sentencing hearing held prior to the Supreme Court’s decision in Blakely v.
Washington, 124 S. Ct. 2531 (2004), the district court1 determined that the Guidelines
sentencing range was 57 to 71 months in prison. The court then departed upward and

      1
      The HONORABLE SCOTT O. WRIGHT, United States District Judge for the
Western District of Missouri.
sentenced Rogers to 360 months in prison. The court’s statement of reasons cited a
victim’s physical injury, see U.S.S.G. § 5K2.2, p.s.; Rogers’s extreme conduct, see
U.S.S.G. § 5K2.8, p.s.; and the large number of visual depictions, see U.S.S.G.
§ 2G2.4 (2002). Rogers appeals the severe upward departure. We affirm.

                                           I.

       The charges against Rogers resulted from warrant searches of his home and
business. Investigators seized computers and data storage devices on which they
found at least 860 images of child pornography that included sexually explicit
photographs of prepubescent children. These images were the basis for the two
counts of possessing child pornography. Forensic analysis revealed that Rogers had
distributed numerous e-mail attachments showing male children engaged in sexually
explicit conduct, including photographs of children chained and bound by ropes.
These images were the basis for the five counts of child pornography distribution.
Investigators also discovered numerous photographs of Rogers posing with severed
male genitals, wearing them on his head, placing them in his mouth and apparently
chewing them, placing them in a coffee cup or on a plate, and attaching severed
penises together. Evidence that Rogers e-mailed some of these images to others was
the basis for the three counts of distributing obscene materials. The evidence also
included Internet “chat logs” in which Rogers discussed methods of torturing and
mutilating children and bragged that he once abducted, raped, tortured, and murdered
a blonde-haired boy from Skidmore, Missouri. In Rogers’s home, office, and van,
investigators found surgical equipment, items used in bondage and torture, and books
dealing with these subjects.

       After Rogers pleaded guilty to all counts, the Presentence Investigation Report
(PSR) recounted the above-summarized facts underlying the offense conduct.
Applying the Guidelines effective November 1, 2002, the PSR assigned Rogers a
total offense level of 24, a criminal history category of II based on a previous federal

                                          -2-
child pornography conviction, and a recommended mandatory Guidelines sentencing
range of 57 to 71 months. The PSR reported that charges were pending in state court
accusing Rogers, who has no medical license, of surgically removing the male
genitalia of a person who wanted a sex change in a motel room while an assistant
photographed the “nullification” procedure, keeping the severed genitalia, and telling
the assistant he ate them. The PSR concluded by suggesting that the court “may wish
to consider an upward departure” pursuant to U.S.S.G. §§ 5K2.0, 5K2.8, and 2G2.4.

       The government moved for an upward departure to 360 months, citing the
physical injury to the person who received the motel room nullification, § 5K2.2; the
heinous and brutal nature of the procedure, § 5K2.8; and Rogers’s large collection of
child pornography images, § 2G2.4.2 Rogers opposed the motion, arguing that
§ 2G2.4 did not authorize a departure above the two-level increase for ten or more
images mandated by § 2G2.4(b)(2), and that the extreme conduct and physical injury
cited by the government did not relate to his child pornography possession and
distribution offenses.


      2
        § 5K2.2, p.s., recognizes that an upward departure may be warranted “[i]f
significant physical injury resulted” and that “[t]he extent of the increase ordinarily
should depend on the extent of the injury.”

       § 5K2.8, p.s., recognizes that an upward departure may be warranted “[i]f the
defendant’s conduct was unusually heinous, cruel, brutal, or degrading to the victim”
and lists as examples of extreme conduct “torture of a victim, gratuitous infliction of
injury, or prolonging of pain or humiliation.”

       Application Note 2 to § 2G2.4 (2002) provided that, “[i]f the offense involved
a large number of visual depictions [of child pornography] , an upward departure may
be warranted.” Following passage of the PROTECT Act in 2003, which mandated
increased penalties for child pornography offenses, § 2G2.4 was deleted and its
substantive provisions consolidated in revised § 2G2.2. See U.S.S.G. Supp. App. C,
amend. 664. The new provision imposes a 5-level increase for offenses involving
more than 600 images. U.S.S.G. § 2G2.2(b)(7)(D).

                                         -3-
       At sentencing, the person who received the motel room nullification testified
that she paid Rogers $750 for the four-hour procedure in which he removed her penis,
scrotum, and testicles using only local anesthetics. Rogers told her he had performed
“over a hundred” castrations and penectomies. Rogers placed her genitals in a plastic
bag in the refrigerator. His assistant took photographs of the procedure which were
subsequently posted on the Internet. The victim bled profusely during the operation
and for six days thereafter, when she finally admitted herself to an emergency room.
The emergency room urologist who treated her testified that she would have died
from the bleeding if she had not come to the hospital that night. An acquaintance of
Rogers testified that he had been present when Rogers performed several
nullifications and had even photographed one such operation at Rogers’s request. He
further testified that Rogers said he assumed “ownership” of the severed genitals and
“physically consumed” them, a claim consistent with the obscene photographs.

     At the conclusion of the testimony the district court granted the government’s
motion to depart upward to 360 months, stating:

      I’ve heard the evidence here and the motion for upward departure. And
      I am going to depart upward. And based on the number of images, the
      extreme nature of the conduct, I can’t imagine any more extreme
      conduct. And, of course, then it was a serious injury that -- it’s a wonder
      she didn’t die from it. Just a wonder.

The court imposed the statutory maximum of ten years for counts 1 and 2 (possession
of child pornography), a consecutive sentence of twenty years for counts 3-7
(distribution of child pornography), and a concurrent sentence of five years, the
statutory maximum, for counts 8-10 (distribution of obscene materials).




                                         -4-
                                          II.

       Rogers first argues that the district court violated his Sixth Amendment rights
by departing upward on the basis of facts not found by a jury or admitted in his plea
agreement. This argument is based on the subsequent decision in Blakely, whose
impact on the federal Sentencing Guidelines was later defined in United States v.
Booker, 125 S. Ct. 738 (2005). In response, the government argues that Rogers
waived this claim in the plea agreement when he agreed “that his sentence will be
determined and imposed pursuant to those Sentencing Guidelines” and that
provisions increasing or decreasing his sentence “will be determined by the Court.”
Rogers replies that he did not waive the right to challenge an upward departure,
which is certainly true. But “[w]hen a defendant pleads guilty, the State is free to
seek judicial sentence enhancements so long as the defendant . . . consents to judicial
factfinding.” Blakely, 124 S. Ct. at 2541. Thus, Rogers waived the claimed Sixth
Amendment rights in the plea agreement.

        There remains an issue that Rogers did not raise -- whether the district court
committed reversible error when it sentenced him under mandatory Guidelines that
are now advisory under Booker. Arguably, Rogers waived this issue in the plea
agreement when he agreed to “waive the right to appeal . . . any sentencing issue
. . . which ha[s] been addressed and agreed upon in this Plea Agreement.” Assuming
the issue was not waived, it is a forfeited claim that we review for plain error.
Nothing in the record establishes “a reasonable probability . . . that but for the
[Booker] error [Rogers] would have received a more favorable sentence.” United
States v. Pirani, 406 F.3d 543, 552 (8th Cir. 2005) (en banc). Thus, there was no
plain error. As the Seventh Circuit said in affirming a substantial upward departure
imposed on a child pornography offender, “[a] judge predisposed to exercising his
discretion adversely to the defendant, knowing that Booker affords yet more latitude,
might impose a sentence higher still; knowledge that freedom has increased would



                                         -5-
not induce the judge to reduce the sentence.” United States v. Cunningham, 405 F.3d
497, 505 (7th Cir. 2005) (quotation omitted).

                                         III.

      Rogers next argues that the district court erred by departing upward without
adequately stating, in open court and in the written judgment, “the specific reason for
the imposition of a sentence” outside the Guidelines sentencing range. 18 U.S.C.
§ 3553(c)(2). We disagree.

       The government’s departure motion relied on specific Guideline provisions --
§§ 2G2.4, 4A1.3, 5K2.2, and 5K2.8. Rogers’s pre-hearing memorandum responded
on each issue. The government presented testimony at the sentencing hearing relating
to the paragraphs in the PSR describing the motel room nullification procedure, the
only relevant portion of the PSR to which Rogers objected on the ground that “these
paragraphs are not supported by any evidence.” At the end of the hearing, the district
court stated that it was departing because of the numerous images, extreme conduct,
and physical injury; by not including Rogers’s allegedly inadequate criminal history
category as an additional ground, the court rejected the government’s motion for an
upward departure under § 4A1.3. Thus, the court stated “specific reasons,” reasons
specifically addressed in the Guidelines, in the parties’ pre-hearing memoranda, and
at the hearing. The court’s written statement of reasons was consistent with its
statement in open court.

       In these circumstances, we agree with the government that the court’s
statements, while cryptic, provide us with specific reasons for the departure that are
sufficient for appellate review. See United States v. Aguilar-Lopez, 329 F.3d 960,
963 (8th Cir. 2003). This is not a case like United States v. Fuentes, 341 F.3d 1216,
1219 (10th Cir. 2003), where the district court “articulated no specific reason or
exceptional circumstance warranting a departure.” Nor is this case like United States

                                         -6-
v. Tucker, 386 F.3d 273, 278 (D.C. Cir. 2004), where the district court in failing to
state reasons for a departure “seemed intent on defying [the Guidelines] -- and 18
U.S.C. § 3553(c) to boot.”

                                          IV.

       Rogers next argues that the district court misapplied the Guidelines departure
provisions by basing the upward departure on extreme conduct and physical injury
which related to the adult victims of his nullification procedures, whereas his child
pornography possession and distribution offenses are “victimless” crimes, and his
obscenity offenses are limited to a five-year statutory maximum sentence, see 18
U.S.C. § 1462. Therefore, Rogers contends, the facts justifying an upward departure
are insufficiently related to his offenses of conviction. This contention reflects a
misunderstanding of sentencing under the Guidelines.

       In deciding whether to depart from the applicable Guidelines range, the district
court is not limited to considering “relevant conduct” as defined in U.S.S.G. § 1B1.3.
Rather, “the court may consider, without limitation, any information concerning the
background, character and conduct of the defendant, unless otherwise prohibited by
law.” § 1B1.4. The permissible range of information includes dismissed or
uncharged criminal conduct. § 5K2.21, p.s. The Second Circuit concluded that the
uncharged conduct must “relate in some way to the offense of conviction” in United
States v. Kim, 896 F.2d 678, 684 (2d Cir. 1990). That is doubtless true, but even a
remote relationship will suffice. See United States v. Flores, 336 F.3d 760, 765 n.6
(8th Cir. 2003). Given this liberal standard, Rogers’s conduct in performing the
heinous and dangerous motel room nullification procedure is without a doubt
sufficiently related at least to the obscenity counts of conviction to be considered for
upward departure purposes.




                                          -7-
        When the defendant has been convicted of multiple offenses, the Guidelines
sentencing range is determined by applying the grouping rules in Part 3D. A sentence
equal to the “total punishment” is then imposed on each count (or the statutory
maximum sentence, if less), and the individual sentences are imposed to run
concurrently, unless the count carrying the highest statutory maximum is less than the
total punishment, in which case consecutive sentencing is employed to produce a
combined sentence equal to the total punishment. U.S.S.G. §§ 5G1.1(a), 5G1.2(d),
5G1.2, comment. (n.1). In this circuit, “the term ‘total punishment’ in § 5G1.2(d)
includes a lawful upward departure.” United States v. Evans, 314 F.3d 329, 332 n.1
(8th Cir. 2002), cert. denied, 539 U.S. 916 (2003). “Once the total punishment is
determined, Part 5G directs the court to sentence multiple counts of conviction as an
interdependent package, and to use consecutive as well as concurrent sentencing to
construct a combined sentence equal to the total punishment.” Id. at 334. Thus,
Rogers’s argument that his extreme conduct causing physical injury is only related
to the counts having the lowest statutory maximum sentence is irrelevant. Because
all the counts are sentenced as an “interdependent package,” a permissible ground for
departure on any count may be applied in determining the total punishment for the
combined offenses.3

                                         V.

      Finally, Rogers argues that the extent of the upward departure -- over twenty
four years -- is unreasonable. Prior to Booker, the statute directed us to review


      3
       The contention also misrepresents the record. The district court based its
departure in part on the large number of pornographic images that Rogers possessed
and distributed, a permissible ground for departure on all ten counts of conviction.
See U.S.S.G. § 2G2.4, comment. n.2 (2002). In addition, a departure under § 5K2.8
is warranted for the unusually cruel and degrading treatment of the child victims in
the pornographic bondage images that Rogers was convicted of distributing. See
United States v. Rugh, 968 F.2d 750, 755-56 (8th Cir. 1992).

                                         -8-
whether the extent of a departure was unreasonable, “giv[ing] due deference to the
district court’s application of the guidelines to the facts.” 18 U.S.C. § 3742(e).
Booker severed and excised § 3742(e), replacing it with a reasonableness standard we
apply “across the board.” 125 S. Ct. at 766. Both standards require that we review
a departure in light of the sentencing factors set forth in 18 U.S.C. § 3553(a). Our
reasonableness review under Booker “is akin to . . . abuse of discretion review.”
United States v. Hadash, 408 F.3d 1080, 1083 (8th Cir. 2005).

       Giving due regard to the § 3553(a) factors and to the sentencing record as a
whole, we cannot say that the district court abused its discretion in imposing this
substantial upward departure. Rogers’s performance of numerous surgical
nullifications without a medical license; his brutal and degrading conduct toward the
motel room victim, inflicting injuries that almost killed her when he failed to seek
appropriate medical care; his ingestion of severed male genitals and publication of
this heinous conduct on the Internet; the exceptionally large number of pornographic
and obscene images; his expressed interest in torturing children; his boast that he
tortured, raped, and murdered a child -- these facts, taken together, are more than
sufficient to warrant a substantial upward departure under U.S.S.G. §§ 5K2.2, 5K2.8,
and 2G2.4 (2002). Though the length of the departure is atypical, it is comparable to
the 213-month departure imposed on a sex offender who unintentionally killed a child
while engaging in a risky form of sexual abuse, a departure affirmed by the Second
Circuit in United States v. Reis, 369 F.3d 143, 151-53 (2nd Cir. 2004).

                                        VI.

      In conclusion, we affirm the 360-month sentence imposed by the district court.
We note, however, that the court did not correctly apply U.S.S.G. §§ 5G1.1 and
5G1.2 in determining the sentence to impose on each count of conviction. The five
child pornography distribution counts carried the highest statutory maximum
sentence, thirty years. Because that is equal to the 360-month total punishment, the

                                         -9-
sentence imposed on each of those counts “shall be the total punishment,” § 5G1.2(b),
and “the sentences on all counts shall run concurrently,” § 5G1.2(c). Because the
remaining counts carried a statutory maximum of less than 360 months, the statutory
maximum sentence for each of those counts “shall be the guideline sentence,”
§ 5G1.1(a) -- ten years each on the two child pornography possession counts and five
years each on the three distribution-of-obscene-materials counts, all to run
concurrently. We remand the case to the district court for entry of a modified
judgment consistent with the requirements of U.S.S.G. Part 5G (2002).
                        ______________________________




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