                              In the

    United States Court of Appeals
                For the Seventh Circuit
No. 12-3104

UNITED STATES OF AMERICA,
                                                Plaintiff-Appellee,

                                v.


RANDALL RAY FLETCHER, JR.,
                                             Defendant-Appellant.

         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.


     ARGUED MAY 19, 2014 — DECIDED AUGUST 14, 2014


   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 possess-
ing 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 signifi-
2                                                         No. 12-3104

cant 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.
                                     I.
    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.1 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


1
  We will refer to the floppy disks and the compact discs collectively as
“discs.” The devices serve the same function of storing electronic data,
including photographs and videos.
No. 12-3104                                                   3

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 photo-
graphs 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 comput-
ers 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 supersed-
ing 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 U.S.C. §§ 2251(a)
and 2. Count II charged Fletcher with receiving child pornogra-
phy between February 28 and July 4, 2002, in violation of 18
U.S.C. §§ 2252(a)(2) and 2. Count III charged possession of
child pornography between February 28 and July 4, 2002, in
violation of 18 U.S.C. §§ 2252(a)(4) and (2). Among the materi-
als charged in Count III were the pictures of MM, as well as
4                                                             No. 12-3104

thousands of photographs and videos of other children. Count
II did not include any pictures of MM. Counts IV and V
addressed only the materials seized in 2009. In particular,
Count IV charged Fletcher with receiving child pornography
between November 8, 2004 and July 3, 2006, in violation of 18
U.S.C. §§ 2252(a)(2) and 2. Count V charged him with posses-
sion of child pornography between November 8, 2004 and
May 1, 2009, in violation of 18 U.S.C. §§ 2252(a)(4) and 2.
Neither of those last two counts included any photographs of
MM.
    Approximately one week prior to the scheduled trial date,
Fletcher pled guilty to all five counts without a plea agreement.
The difficulties of calculating the correct guidelines range for
conduct occurring over a lengthy time line that encompassed
significant changes to the guidelines resulted in three addenda
to the Presentence Investigation Report (“PSR”). Over
Fletcher’s objections, the court applied the 2011 guidelines to
all of the conduct charged. For Count I, the court determined
that Fletcher’s base offense level was 32 under section 2G2.1 of
the guidelines. Adding enhancements for the age of the
victims, the sadistic nature of the pictures, the fact that Fletcher
was a parent of the child portrayed, and obstruction of justice,
the resulting offense level was 44. The court then grouped
counts II through V under section 3D1.2(d), and determined
the base offense level to be 22.2 Applying enhancements for the
age of the victims, the sadistic nature of the materials, a pattern


2
  Fletcher did not object on appeal to the district court’s decision to group
Counts II through V. We will therefore assume that these counts were
properly grouped when assessing Fletcher’s main argument on appeal.
No. 12-3104                                                    5

of activity involving the sexual exploitation of a minor (because
of the possession of pictures of MM as charged in Count III),
the use of a computer and the large number of images, the
court calculated a preliminary offense level of 40. The court
then applied the cross reference found in guideline 2G2.2(c)
and re-calculated the preliminary offense level to be 42.
Because that exceeded the original preliminary offense level for
Counts II through V, the court used the latter figure and added
an adjustment for obstruction of justice, resulting in a total
offense level of 44, the same as for Count I. Two levels were
then added under the multi-count adjustment, resulting in a
total offense level of 46. The court then reduced the final
offense level to 43, the maximum allowed under the guidelines.
See U.S.S.G. Ch. 5, Pt. A, Application Note 2. Combined with
Fletcher’s criminal history category of IV, the guidelines range
was life imprisonment. This exceeded the statutory maximum
for the various offenses and so the court, after considering the
factors listed in section 3553(a), sentenced Fletcher to 360
months of imprisonment. That sentence consisted of 240
months on Count I; 120 months on Count IV to be served
consecutively to the sentence for Count I; 120 months on Count
II; sixty months on Count III; and 120 months on Count V, with
the sentences for Counts II, III and V to be served concurrently
with the sentences for Counts I and IV. Fletcher appeals his
sentence.
                                 II.
    On appeal, Fletcher argues that the district court violated
the ex post facto clause when it employed the 2011 version of the
guidelines for criminal acts that took place in 2002 and 2009,
time periods when the guidelines were less onerous than those
6                                                             No. 12-3104

in effect in 2011.3 We review constitutional challenges to a
sentence de novo. United States v. Brucker, 646 F.3d 1012, 1016
(7th Cir. 2011). Our review of sentencing decisions generally is
limited to whether they are reasonable, applying the abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 46 (2007).
We first must ensure that the district court committed no
significant procedural error, including, among other things,
incorrectly calculating the guidelines range, or failing to
explain adequately the chosen sentence. Gall, 552 U.S. at 51. We
review the district court's interpretation of the sentencing
guidelines de novo, United States v. Veazey, 491 F.3d 700, 706 (7th
Cir. 2007), and findings of fact for clear error. United States v.
Knox, 624 F.3d 865, 870 (7th Cir. 2010). Sentences that are
within the properly calculated guidelines range are entitled to
a rebuttable presumption of reasonableness. Rita v. United
States, 551 U.S. 338, 347 (2007); United States v. Mykytiuk, 415
F.3d 606, 608 (7th Cir. 2005). If the district court erred in
sentencing Fletcher, we will apply the doctrine of harmless
error in determining whether resentencing is necessary. United
States v. Olson, 450 F.3d 655, 683 (7th Cir. 2006). An error
related to the validity of a defendant's sentence is harmless
only if it did not affect the district court's choice of sentence.
Olson, 450 F.3d at 683; United States v. Schlifer, 403 F.3d 849, 854
(7th Cir. 2005).



3
   The 2001 version of the guidelines was in effect at the time Fletcher
committed the crimes charged in the first three counts of the indictment.
The 2008 guidelines were in effect when Fletcher committed Count V. The
2011 guidelines are the same as the 2008 guidelines for all relevant purposes
in this appeal.
No. 12-3104                                                      7

    All versions of the guidelines relevant to this appeal
provide that “[t]he court shall use the Guidelines Manual in
effect on the date that the defendant is sentenced.” U.S.S.G.
§ 1B1.11(a). However, if “the court determines that use of the
Guidelines Manual in effect on the date that the defendant is
sentenced would violate the ex post facto clause of the United
States Constitution, the court shall use the Guidelines Manual
in effect on the date that the offense of conviction was commit-
ted.” U.S.S.G. § 1B1.11(b)(1). The guidelines also require courts
to apply the Guidelines Manual in effect on a particular date in
its entirety. U.S.S.G. § 1B1.11(b)(2). Finally, “[i]f the defendant
is convicted of two offenses, the first committed before, and the
second after, a revised edition of the Guidelines Manual
became effective, the revised edition of the Guidelines Manual
is to be applied to both offenses.” U.S.S.G. § 1B1.11(b)(3). This
last provision is often referred to as the “one book rule.”
    Fletcher was sentenced in August 2012, and the November
1, 2011 guidelines were in effect at that time. Under section
1B1.11(a), the 2011 guidelines would therefore be applicable
unless the use of that version would violate the ex post facto
clause. Fletcher contends that the use of the 2011 guidelines did
in fact violate the ex post facto clause because that version was
considerably more onerous than the 2001 book in effect at the
time he committed the acts charged in Counts I, II and III. The
Prosecutorial Remedies and Other Tools to End the Exploita-
tion of Children Today Act of 2003 resulted in significant
amendments to the child pornography guidelines on Novem-
ber 1, 2004. See Pub. L. No. 108-21, 117 Stat. 650 (hereafter the
“PROTECT Act”); U.S.S.G. Manual Supplement to Appendix
C, Vol. III, Amendment 664, at 58–63 (Nov. 1, 2009) (describing
8                                                          No. 12-3104

amendments to the guidelines made in accordance with the
PROTECT Act). Among other changes, the base offense level
under section 2G2.1 rose from 27 to 32, and the base offense
level under section 2G2.2 increased from 17 to 22.4 Fletcher is
thus correct that, at least as applied to his 2002 conduct, the
2011 guidelines were harsher than those in effect at the time he
committed the acts comprising the first three counts of convic-
tion.
    When the district court used the 2011 guidelines to sentence
Fletcher, it relied on our then-binding opinion in United States
v. Demaree, 459 F.3d 791 (7th Cir. 2006), in concluding that the
use of the more recent and more onerous guidelines did not
violate the ex post facto clause. In Demaree, we reasoned that
application of the harsher version of the guidelines in effect at
the time of sentencing rather than the version in effect at the
time the offense was committed posed no ex post facto problem
because of the advisory nature of the guidelines. 459 F.3d at
795. After the district court sentenced Fletcher, the Supreme
Court rejected our reasoning in Demaree. See Peugh v. United
States, 133 S. Ct. 2072 (2013). See also United States v. Vallone, 752
F.3d 690, 693 (7th Cir. 2014). In Peugh, the Court concluded
that, even though the guidelines are advisory, courts are
required to use the correctly calculated range as the starting
point in the sentencing process and as a reference point in
determining the final sentence. Peugh, 133 S. Ct. at 2080–84;
Vallone, 752 F.3d at 693–94. In short:


4
  The base offense level in section 2G2.2 actually increased from a single
level of 17 to either 18 or 22 depending on the statute of conviction. In
Fletcher’s case, the guideline increased from 17 to 22.
No. 12-3104                                                     9

     The federal system adopts procedural measures
     intended to make the Guidelines the lodestone of
     sentencing. A retrospective increase in the Guide-
     lines range applicable to a defendant creates a
     sufficient risk of a higher sentence to constitute an ex
     post facto violation.
Peugh, 133 S. Ct. at 2084. See also Vallone, 752 F.3d at 694.
Fletcher contends that we must vacate and remand his sen-
tence for reconsideration in light of Peugh.
    We conclude, though, that Peugh does not require a remand
in this instance. First, the court did not err in using the later
guidelines to calculate the sentence for the grouped counts
(Counts II through V) that straddled the date of the change in
the guidelines. And second, any error in calculating the range
for Count I was, in the end, harmless.
    We faced a similar issue in United States v. Vivit, 214 F.3d
908 (7th Cir. 2000), a case that was decided at a time when the
application of the guidelines was considered mandatory rather
than advisory. Vivit challenged the application of the one book
rule to his sentence for sixteen counts of mail fraud. Vivit’s
conduct straddled two versions of the guidelines, and the latter
version added a two-level enhancement for the use of a minor
in the commission of the offense. Vivit employed a minor in
fraud counts that were completed before that guideline was
adopted but did not use a minor after the enactment of the
enhancement. The district court grouped all of Vivit’s offenses
under guideline section 3D1.2, which directs the court to group
together for sentencing purposes all counts involving substan-
tially the same harm. The court then applied the two-level
10                                                     No. 12-3104

enhancement for use of a minor. We noted that, to “violate the
ex post facto clause, the application of amended Guidelines must
disadvantage the defendant without providing the defendant
with prior notice.” Vivit, 214 F.3d at 919. We then held that the
grouping rules, together with the one book rule, provided
Vivit with adequate notice that the newer version of the
guidelines would be applied to him if he elected to continue his
criminal activity after the guidelines were amended. 214 F.3d
at 919. Therefore, imposition of the later, harsher version of the
guidelines posed no ex post facto problem.
    We recently noted that the reasoning of Vivit survives
Peugh. See Vallone, 752 F.3d at 698–99; United States v. Hallahan,
2014 WL 3029705, *14, — F.3d — (7th Cir. July 7, 2014). See also
United States v. Pagan-Ferrer, 736 F.3d 573, 598–99 (1st Cir.), cert.
denied, 134 S. Ct. 2839 (2013). That is, the application of the
newer, harsher version of the guidelines to grouped offenses
that straddle an amendment poses no ex post facto problem
because the grouping guidelines together with the one book
rule provide adequate notice to defendants that they will face
the harsher version of the guidelines if they choose to continue
a course of conduct after the guidelines are amended. In
Fletcher’s case, the district court grouped Counts II through V
under section 3D1.2(d). Counts II and III were completed in
2002, before the Sentencing Commission implemented signifi-
cant changes to the child pornography guidelines in 2004.
Counts IV and V were completed in 2006 and 2009, respec-
tively, after the 2004 amendments. Fletcher has not challenged
No. 12-3104                                                              11

that grouping on appeal.5 Under section 1B1.11(b)(3), the later
version of the guidelines applies to the entire group. Vivit and
Vallone therefore control the result for Counts II through V, and
the court committed no error in using the later version of the
guidelines to calculate Fletcher’s sentence for those counts.
    Count I, however, was not grouped, and so the grouping
rules could not be said to have provided notice to Fletcher that
he would be subject to the harsher version of the guidelines in
effect at the time of sentencing. The government concedes as
much, acknowledging in its brief that “Vivit does not answer
the question of how to treat Count I, which does not group
with the other counts.” Brief for the United States, at 18. The
government nevertheless contends that any error in applying
the newer guidelines to Count I was harmless. The government
urges us to find that the offense level of 44 for Counts II
through V is, for all relevant purposes, the same as the level 46
found by the district court after adding two levels for Count I
under the section 3D1.4 multi-count adjustment because the
guidelines are capped at level 43. Including or excluding those
two levels for Count I from the final calculation, the govern-
ment asserts, yields the same guidelines range of life and so
any error on Count I is harmless.




5
  Fletcher also asserts that the five-level enhancement for sexual exploita-
tion of a minor should not apply to the calculation of the guidelines range
for Counts II through V because the conduct that gave rise to that adjust-
ment occurred in 2002. But Fletcher did not challenge the grouping of these
counts and Vivit and Vallone demonstrate that application of the adjustment
was proper.
12                                                    No. 12-3104

     With a few adjustments to this analysis, we conclude that
if the district court made any error in calculating the range for
Count I, it was harmless. First, we note that the final guidelines
range was not, in fact, life. As the district court recognized, the
statutory maximum for Count I is twenty years; for Count II,
fifteen years; for Count III, five years; for Count IV, twenty
years; and for Count V, ten years. “Where the statutorily
authorized maximum sentence is less than the minimum of the
applicable guideline range, the statutorily authorized maxi-
mum sentence shall be the guideline sentence.” U.S.S.G.
§ 5G1.1. For Count I, then, the range of “life” was effectively
reduced to twenty years, the statutory maximum. For Counts
II through V, the range of “life” was reduced to the sum of the
statutory maximum sentences as if they were applied consecu-
tively, in this instance, fifty years (fifteen plus five plus twenty
plus ten). See United States v. Boroczk, 705 F.3d 616, 622 (7th Cir.
2013), cert. denied, 134 S. Ct. 288 (2014) (explaining that a
guidelines range of life defaults under section 5G1.1(a) to the
sum of the statutory maximum sentences for each count).
Because the range for each group was restricted by the statu-
tory maximum, the government’s contention that the range
was life no matter whether the court included Count I falls flat.
Second, the court ordered that the sentence for Count IV be
served consecutively to the sentence for Count I, and that the
sentences for the remaining counts be served concurrently with
those counts. Thus, if the court erred in calculating the sentenc-
ing range for Count I, the government’s theory alone could not
No. 12-3104                                                                  13

assure us that the error had no effect on the court’s selection of
a sentence.6
    But Fletcher himself supplies the answer as to whether any
error on Count I affected the court’s selection of a sentence. By
Fletcher’s calculations using the earlier version of the guide-
lines, the total offense level “as it pertains to Count I” should
have been 37. With a criminal history category of IV, the earlier
version of the guidelines would have yielded a sentencing
range of 292-365 months. See Brief of Defendant-Appellant, at
13-14. As was the case with the district court’s calculation, the
low end of this range exceeded the statutory maximum for
Count I and so, under section 5G1.1, “the statutorily autho-
rized maximum sentence shall be the guidelines sentence.”
That would bring the range for Count I down to 240 months,
the same range the district court calculated under the 2011
guidelines. Because the court was constrained by the statutory
maximum under either version of the guidelines, any error in
calculating the range for Count I could not have affected the
district court's choice of a sentence and thus any possible error




6
   The government also urges us to find that, in the case of non-grouped
offenses, section 1B1.11(c) in combination with Federal Rule of Criminal
Procedure 8(a) provide defendants with sufficient notice to avoid an ex post
facto violation. Because we conclude that any possible error by the district
court was harmless, we need not reach this issue. We note, though, that the
rule for joinder of offenses is a thin reed on which to rest the notice that the
ex post facto clause requires, and that such an analysis may result in
unintended side-effects as defendants seek to sever counts in order to avoid
unpredictable sentencing consequences.
14                                                 No. 12-3104

was harmless. Olson, 450 F.3d at 683; Schlifer, 403 F.3d at 854.
The judgment is therefore
                                                   AFFIRMED.
