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

No. 04-2014
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                                v.

KEVIN W. SCHMEILSKI,
                                           Defendant-Appellant.
                         ____________
          Appeal from the United States District Court
           for the Central District District of Illinois.
          No. 02 CR 10099—Joe Billy McDade, Judge.
                         ____________
    ARGUED DECEMBER 7, 2004—DECIDED MAY 25, 2005
                   ____________




  Before BAUER, MANION, and WILLIAMS, Circuit Judges.
  WILLIAMS, Circuit Judge. Kevin Schmeilski appeals the
sentence he received after pleading guilty to unlawful pro-
duction of child pornography, unlawful possession of child
pornography and criminal forfeiture. We reject his argu-
ment that the application of both U.S.S.G. §§ 2G2.1(c)(1)
and 4B1.5 to his sentence constitutes impermissible double
counting. In light of the Supreme Court’s decision in United
States v. Booker, 125 S. Ct. 738 (2005), however, we order
a limited remand regarding his sentence in accordance with
the procedure set forth in United States v. Paladino, 401
F.3d 471 (7th Cir. 2005).
2                                                No. 04-2014

                      I. Introduction
  After receiving a digital camera on Christmas day in 2001,
Kevin Schmeilski began to produce pornographic images of
his three stepdaughters who were 12, 14, and 15 years old.
Schmeilski took pictures of his stepdaughters engaging in
explicit sexual conduct, and, on other occasions, had one of
his stepdaughters take pornographic images of him while
he engaged in sexual activities with another stepdaughter.
When law enforcement officials later seized Schmeilski’s
computer, they found explicit images of his stepdaughters
in addition to approximately 1500 visual images or videos
of child pornography that Schmeilski had downloaded from
the internet.
  Schmeilski pled guilty to production of child pornography,
in violation of 18 U.S.C. § 2251(b), possession of child
pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B), and
criminal forfeiture, in violation of 18 U.S.C. § 2253. In
calculating Schmeilski’s sentence under the then-manda-
tory United States Sentencing Guidelines, the sentencing
judge imposed a multiple count adjustment because there
were three minor victims. See U.S.S.G. § 2G2.1(c)(1).1 This
adjustment resulted in a three-level increase to his offense
level. See U.S.S.G. §§ 2G2.1(c)(1); 3D1.4. Among other ad-
justments, the sentencing judge also imposed a five-level
increase to Schmeilski’s offense level pursuant to U.S.S.G.
§ 4B1.5(b)(1) for engaging in a pattern of prohibited sexual
activity. Schmeilski objected to the application of both
U.S.S.G. §§ 2G2.1(c)(1) and 4B1.5, contending the applica-
tion of both provisions constituted impermissible double
counting. The sentencing judge rejected this argument.
Schmeilski was sentenced to serve 213 months in prison for
production of child pornography and 60 months for posses-


1
  References to the United States Sentencing Guidelines are to
the 2002 version.
No. 04-2014                                                  3

sion of child pornography, both sentences to run concur-
rently. Schmeilski now appeals.


                        II. Analysis
  A. Double counting
  Schmeilski contends that the five-level increase to his
sentence pursuant to U.S.S.G. § 4B1.5 impermissibly double
counts conduct already accounted for in the three level
adjustment he received pursuant to § 2G2.1(c)(1). We
review de novo whether the district court’s application of
the Sentencing Guidelines amounts to impermissible double
counting. United States v. Vivit, 214 F.3d 908, 924 (7th Cir.
2000).
  Improper double counting occurs “when a district court
imposes two or more upward adjustments within the same
guidelines range, when both are premised on the same
conduct.” United States v. Haines, 32 F.3d 290, 293 (7th Cir.
1994). That is, the same conduct cannot be described in two
different ways to justify two different enhancements when
each leads to a separate upward adjustment. United States
v. Parolin, 239 F.3d 922, 929 (7th Cir. 2001); United States
v. White, 222 F.3d 363, 375-76 (7th Cir. 2000). In addition,
although premising multiple enhancements on “identical
facts” constitutes impermissible double counting, United States
v. Szakacs, 212 F.3d 344, 353 (7th Cir. 2000), the presence
of some overlap in the factual basis for two or more upward
adjustments does not automatically qualify as double
counting. Parolin, 239 F.3d at 929 (citing Haines, 32 F.3d at
293). When two enhancements address distinct aspects of
the defendant’s conduct, the application of both does not
constitute double counting. United States v. Myers, 355 F.3d
1040, 1044 (7th Cir. 2004); White, 222 F.3d at 376; United
States v. Lanzotti, 205 F.3d 951, 957 (7th Cir. 2000).
4                                                   No. 04-2014

  Here, Schmeilski pled guilty to production of child pornog-
raphy, in violation of 18 U.S.C. § 2251(b), acknowledging
that as the parent or person having custody and control
of each minor, he knowingly permitted his stepchildren to
engage in sexually explicit conduct for the purposes of pro-
ducing visual depictions of that conduct.2 When calculating
the sentence for a defendant convicted of violating 18 U.S.C.
§ 2251(b), U.S.S.G. § 2G2.1(c)(1) provides: “If the offense
involved the exploitation of more than one minor, Chapter
Three, Part D (Multiple Counts) shall be applied as if the
exploitation of each minor had been contained in a separate
count.” Schmeilski acknowledged that he exploited three of
his minor stepchildren, and the district court applied
Chapter Three of the Guidelines as though each of the three
minors had been contained in a separate count. This appli-
cation resulted in an increase of three levels to Schmeilski’s
base offense level. See U.S.S.G. § 3D1.4.
  On the other hand, U.S.S.G. § 4B1.5(b)(1) states: “In any
case in which the defendant’s instant offense of conviction
is a covered sex crime, . . ., and the defendant engaged in a
pattern of activity involving prohibited sexual conduct: (1)
The offense level shall be 5 plus the offense level deter-
mined under Chapters Two and Three . . . .” Schmeilski
does not dispute that his conviction for production of child
pornography in violation of 18 U.S.C. § 2251(b) constitutes
a “covered sex crime,” see U.S.S.G. § 4B1.5, cmt. n.2(A)(ii),
or that production of child pornography is “prohibited sex-
ual conduct,” see U.S.S.G. § 4B1.5, cmt. n.4(A)(ii).
  A “pattern of activity” for the purposes of § 4B1.5(b)(1)
occurs when: (1) a defendant engages in the prohibited sex-
ual conduct with a minor on at least two separate occasions,
and (2) there were at least two minor victims. U.S.S.G.


2
  Sexually explicit conduct includes “lascivious exhibition of the
genitals or pubic area of any person.” 18 U.S.C. § 2256(2).
No. 04-2014                                                  5

§ 4B1.5, cmt. n.4(B)(i). Schmeilski also does not dispute that
he engaged in prohibited sexual conduct with his three
minor stepdaughters on at least two separate occasions,
thus constituting a pattern of activity involving prohibited
sexual conduct.
  Rather, Schmeilski contends that the district court’s
imposition of a five-level increase pursuant to § 4B1.5 for
engaging in a “pattern of activity” after the imposition of a
three-level multiple victim adjustment resulting from
§ 2G2.1(c)(1) constitutes impermissible double counting. He
maintains that because both adjustments are premised
upon his production of child pornography involving each of
his three minor stepchildren, the application of both provi-
sions here amounts to double counting.
  We do not agree that the application of both provisions
constituted impermissible double counting, as the two adjust-
ments punish distinct conduct. The application of § 2G2.1(c)(1)
punished Schmeilski for exploiting three different minors,
while the § 4B1.5 enhancement punished him for exploiting
those minors on multiple occasions. The separate adjust-
ments for the number of minors exploited and for the fact
that minors were exploited on multiple occasions are not
premised on the same conduct. A defendant could receive
the multiple victim adjustment without also engaging in a
pattern of activity involving prohibited sexual conduct. For
example, had Schmeilski on only one occasion required his
three minor stepdaughters to engage in sexually explicit
conduct so he could photograph them, the directive in
§ 2G2.1(c)(1) would apply because more than one minor was
exploited. Although this behavior would still be repre-
hensible, the five-level enhancement under § 4B1.5 would
not apply because prohibited sexual conduct did not occur
on more than one separate occasion. Therefore, because
§ 2G2.1(c)(1) and § 4B1.5 address distinct conduct, the
application of both in calculating Schmeilski’s sentence did
not constitute impermissible double counting.
6                                                No. 04-2014

    B. Booker challenge
  Schmeilski also contends that the Supreme Court’s deci-
sion in United States v. Booker, 125 S. Ct. 738 (2005), neces-
sitates resentencing. Because Schmeilski raises this
contention for the first time on appeal, our review is for
plain error. United States v. Paladino, 401 F.3d 471, 481 (7th
Cir. 2005).
  Under the plain error test, “before an appellate court can
correct an error not raised at trial, there must be (1) error,
(2) that is plain, and (3) that affects substantial rights.”
United States v. Cotton, 535 U.S. 625, 631 (2002) (internal
quotations and citation omitted). “If all three conditions are
met, an appellate court may then exercise its discretion to
notice a forfeited error, but only if (4) the error seriously
affects the fairness, integrity, or public reputation of judi-
cial proceedings.” Id. (citations omitted).
  As we have recently made clear, the mandatory, as op-
posed to advisory, application of the Guidelines constitutes
error that is plain. United States v. White, No. 03-2875, 2005
WL 1023032, at *7 (7th Cir. May 3, 2005); United States v.
Castillo, Nos. 02-3584 & 02-4344, 2005 WL 1023029, at *15
(7th Cir. May 3, 2005). If a defendant has been prejudiced
by an illegal sentence, then allowing that illegal sentence to
stand would constitute a miscarriage of justice. Paladino,
401 F.3d at 483 (“It is a miscarriage of justice to give a
person an illegal sentence that increases his punishment,
just as it is to convict an innocent person.”); United States
v. Macedo, 2005 WL 851501, at *8 (7th Cir. Apr. 14, 2005).
  We now ask whether the sentencing judge, operating under
the discretion permitted by Booker, might have sentenced
Schmeilski any differently. Here, the district court sen-
tenced Schmeilski under the mandatory guidelines regime
to 213 months’ imprisonment on one count and 60 months
on another, to run concurrently with each other and an
undischarged sentence for a state conviction. In sentencing
No. 04-2014                                                7

Schmeilski to 213 months for production of child pornogra-
phy, the district court first determined the applicable
sentencing range as 188 to 235 months. It then discounted
22 months from the top of the range to reflect time already
served in state custody in order to arrive at the sentence of
213 months’ imprisonment. See U.S.S.G. § 5G1.3(b) & cmt.
n.2.
  On this record, we cannot be certain that the district
court would have imposed the same sentence with the dis-
cretion permitted by Booker. As we stated in Paladino, “A
conscientious judge—one who took the guidelines seriously
whatever his private views—would pick a sentence relative
to the guideline range. If he thought the defendant a more
serious offender than an offender at the bottom of the range,
he would give him a higher sentence even if he thought the
entire range too high.” Paladino, 401 F.3d at 482. Here, we
cannot say whether the district court judge might have con-
sidered the entire range too high. We note that the district
court judge did not make any statement indicating that it
would have sentenced Schmeilski to a higher range if it had
possessed the authority to do so, nor was Schmeilski’s
sentence at a statutory maximum. See United States v.
Della Rose, 403 F.3d 891, 907 (7th Cir. 2005) (“It has not
escaped our attention that the district court sentenced [the
defendant] at the high end of the Guidelines range, but that
alone does not rule out the possibility that the judge might
have imposed a lesser sentence had he known that the
Guidelines did not bind him.”); cf. United States v. Lee, 399
F.3d 864, 866 (7th Cir. 2005). Accordingly, while retaining
jurisdiction of the appeal, we order a limited remand to
permit the sentencing judge to determine whether “he
would have given the defendant a shorter sentence had he
realized the guidelines are merely advisory.” United States
v. Goldberg, No. 03-3955, 2005 WL 1083774, at *3 (7th Cir.
May 5, 2005); see also Paladino, 401 F.3d at 484. The
sentencing judge should proceed on remand in accordance
with the procedure we set forth in Paladino.
8                                                No. 04-2014

                      III. Conclusion
  We reject Schmeilski’s argument that the application of
both U.S.S.G. §§ 2G2.1(c)(1) and 4B1.5 to his sentence con-
stitutes impermissible double counting, but we order a limited
remand of his sentence in accordance with United States v.
Paladino.


A true Copy:
       Teste:

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




                   USCA-02-C-0072—5-25-05
