                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 11-3338

U NITED S TATES OF A MERICA,
                                                 Plaintiff-Appellee,
                                v.

E RIC S CHUSTER,
                                             Defendant-Appellant.


            Appeal from the United States District Court
               for the Western District of Wisconsin.
             No. 11-cr-00045—Barbara B. Crabb, Judge.



    A RGUED F EBRUARY 14, 2012—D ECIDED F EBRUARY 4, 2013




  Before E ASTERBROOK, Chief Judge, B AUER, Circuit Judge,
and C HANG , District Judge.
  C HANG , District Judge. Eric Schuster pleaded guilty to
knowingly using a minor to produce child pornography.
18 U.S.C. § 2251(a). The district court sentenced him




  The Honorable Edmond E. Chang, Judge of the United States
District Court for the Northern District of Illinois, sitting
by designation.
2                                             No. 11-3338

to nearly 22 years of imprisonment. On appeal, Schuster
challenges the sentence on four grounds: (1) the district
court erred in finding that he distributed certain of the
child pornography that he produced; (2) the distribution
of other child pornography was not “relevant conduct”
under the Sentencing Guidelines; (3) the district court
erred in finding that a certain other photograph that he
took of a young boy constituted child pornography
(this finding impacted the Sentencing Guidelines cal-
culation); and (4) the sentence is unreasonable. We
reject all of the arguments and affirm the sentence.


                            I.
  In December 2010, law enforcement agents in the Nether-
lands arrested a prolific manufacturer of child pornogra-
phy, Roberts Mikelsons. Mikelsons cooperated with the
authorities and provided leads against other individuals
who exchanged child pornography with Mikelsons.
Eventually, Department of Homeland Security agents
in the United States identified Eric Schuster as one of
Mikelsons’s trading partners. The agents obtained a search
warrant for Schuster’s home, and the search yielded his
computers, digital cameras, and a variety of storage
devices and media, including SD memory cards for the
cameras. Among other images, the SD cards contained
three series of digital photographs that are directly
relevant to the appeal.
  The first series shows a small prepubescent boy lying
on his back on a blue sheet on a bed. The boy is wearing
a white shirt and red shorts with the word “lifeguard”
No. 11-3338                                             3

printed on the shorts. A note card lies on the boy’s stom-
ach; the card says, “Hello Alex” (Alex is not the name
of the victim, but is instead the name of the person to
whom Schuster, the district court held, distributed the
photos). Additional images show the boy’s shorts pulled
down, exposing his penis and testicles. Other images in
this “Hello Alex” series show a note card on the boy’s
leg, and this card says, “Alex do you like my cock?”
  The second series shows three minor boys in a bath-
tub. In one of the images, a two-year-old boy is squatting
in the tub, and the image shows him from the chest-down
to his knees (his head is not shown in the photo). The
photo is taken on a downward angle, and shows the two-
year-old boy’s genitalia.
   The third series shows three young boys sleeping on a
bed. Four photos in this series show Schuster’s hand
exposing the penis of one of the boys. The boy was six
years old at the time. In the series, the penis becomes
erect, and in one the later images, the boy’s erect penis
is wet.
  A few weeks after the search warrant’s execution, a
grand jury indicted Schuster on two counts. The first
count charged Schuster for using a minor to produce
child pornography, specifically, for using the boy in the
“Hello Alex” series to create the images. 18 U.S.C.
§ 2251(a). The second count charged Schuster with know-
ingly possessing child pornography, namely, the “Hello
Alex” series. 18 U.S.C. § 2252(a)(4)(B). Schuster pleaded
guilty to the production count. The district court held a
thorough sentencing hearing, and ultimately sentenced
4                                              No. 11-3338

Schuster to 262 months’ imprisonment, along with a
lifetime of supervised release.


                            II.
A. Use of Schuster’s Statement to Prove Distribution
  Schuster’s first challenge to the sentence is that the
district court erred in finding that Schuster distributed
the “Hello Alex” series of photos; the finding increased
his Sentencing Guidelines offense level. Specifically,
Sentencing Guideline § 2G2.1 applied to the manufacturing
conviction. Under that guideline, two offense levels
must be added if the “offense involved distribution.”
USSG § 2G2.1(b)(3). We review the district court’s inter-
pretation and application of the Sentencing Guidelines
de novo, but the ultimate finding of distribution is
reviewed only for clear error as a finding of fact. United
States v. Carani, 492 F.3d 867, 875 (7th Cir. 2007). “ ‘A
finding of fact is clearly erroneous only if, based
upon the entire record, we are left with the definite
and firm conviction that a mistake has been commit-
ted.’ ” Id. (quoting United States v. Chamness, 435 F.3d
724, 726 (7th Cir. 2006)).
  During the sentencing hearing, Schuster argued that
there was insufficient evidence that he had distributed
the “Hello Alex” series. But the most damning evidence
of distribution was Schuster’s own statement that he
did so. The day before sentencing, Schuster filed a hand-
written letter addressed to the District Judge. USDC 11-cr-
00045, Docket Entry 36. The letter was in the nature of
a pre-sentencing written allocution, wherein Schuster
No. 11-3338                                                 5

discussed the crime and his personal reactions to what
he had done. The letter stated that an internet chat ac-
quaintance asked Schuster to take the “Hello Alex” series
of photos, and although he initially refused the request,
after more requests from the same person, Schuster
did take the photos. Id. In the letter, Schuster claimed to
be “physically ill about doing this after sending the pictures
to the requesting person.” Id. (emphasis added). Not
surprisingly, the district court relied on that admission
in finding that Schuster distributed the series. Sentencing
Tr. 17-18. The district court also relied on the fact that
the content of the photos themselves showed that
Schuster prepared the photos for distribution. Id. at 18.
Remember that some of the photos contain note
cards laid on the boy’s body, and the cards bore
messages to the intended recipient of the series. Not
only were there greetings (“Hello Alex”), but also one
of the cards specifically linked the sexual nature of the
series with the intended recipient (“Alex do you like
my cock?”).
  Against all this, Schuster argues that the letter to the
District Judge was inadmissible because the letter was
covered by a proffer agreement between Schuster and
the government. It is true that Schuster and the govern-
ment did enter into a proffer agreement on August 22,
2011. Broadly stated, under the proffer agreement,
Schuster agreed to provide (that is, “to proffer”) infor-
mation concerning the ongoing child pornography in-
vestigation in exchange for the government’s agreement
not to use the proffer statements against him in any trial
and not to use the statements in aggravation of his sen-
tence. That latter aspect of the proffer agreement is
6                                                No. 11-3338

based on Sentencing Guideline § 1B1.8(a), which recog-
nizes the use of proffer agreements between defendants
and the government, and states that proffer-protected
“information shall not be used in determining the ap-
plicable guideline range, except to the extent provided
in the agreement.” USSG § 1B1.8(a). Proffer-protected
information cannot be used to increase a guideline
range even if it is the defendant who provides the infor-
mation to a probation officer during the presentence-
report preparation. § 1B1.8, appl. n.5.1 We too have recog-
nized the validity and enforceability of proffer agree-
ments, United States v. Farmer, 543 F.3d 363, 374 (7th Cir.
2008), which allow defendants to advance plea negotia-
tions by providing information that may otherwise be
used directly against them, and at the same time allow
the government to consider the information in assessing
whether to enter into a plea agreement or other sen-
tencing agreement with the defendant. In light of the
importance of proffer agreements to the plea-bargaining


1
  Application note 5 states: “This guideline limits the use of
certain incriminating information furnished by a defendant
in the context of a defendant-government agreement for the
defendant to provide information concerning the unlawful
activities of other persons. The guideline operates as a
limitation on the use of such incriminating information in
determining the applicable guideline range, and not merely
as a restriction of the government’s presentation of such
information (e.g., where the defendant, subsequent to having
entered into a cooperation agreement, provides such infor-
mation to the probation officer preparing the presentence
report, the use of such information remains protected by
this section).”
No. 11-3338                                                   7

process, we do hold the government to “ ‘the literal
terms’ ” of the agreement and to the “ ‘most meticulous
standards of both promise and performance.’ ” Id. at 374
(quoting United States v. Schilling, 142 F.3d 388, 395
(7th Cir. 1988)). When reviewing whether the govern-
ment breached a proffer agreement, we review disputed
facts for clear error and the ultimate question of breach
de novo. Farmer, 543 F.3d at 373.
  In this case, the government did not breach its
proffer agreement with Schuster. We know this for two
reasons. First, although Schuster did sit for a lengthy
proffer interview with agents from the Netherlands
(with a Homeland Security agent in attendance),
Schuster does not cite to record evidence that Schuster
ever said, during the proffer, that he distributed the
“Hello Alex” series. At most, Schuster cites to his sen-
tencing memorandum in the district court, but that
memo did not say that Schuster made a proffer-
protected statement that he distributed the series. See
Appellant Br. at 10-11 (citing R. 29 at 21-22). So to the
extent that Schuster is arguing that the letter to the
District Judge merely repeated what had been said
during a proffer session, the record does not support
the premise of the argument.2


2
  Schuster also appears to argue that an earlier letter, sent to
the prosecutor on August 8, 2011, contained the admission of
distribution and that the August 8 letter was proffer protected.
Schuster’s counsel laudably sent the letter to correct a state-
ment that Schuster made during the guilty-plea colloquy of
August 5, in which he said that he did not distribute the
                                                  (continued...)
8                                                No. 11-3338

  The second reason Schuster’s argument fails is more
fundamental than the first: in the letter to the District
Judge, it was Schuster, not the government, who sought
to make affirmative use of the information that he dis-
tributed the “Hello Alex” series. In the letter, Schuster
did not merely refer to information that he provided
during a proffer interview with the government (even
assuming he provided information about the distribu-
tion, which the record does not support). Instead,
Schuster admitted that he had distributed the series in
order to explain purported mitigation for his conduct,
specifically, how awful he felt after sending it. He thus
was not using the proffer agreement to shield himself
from the use of proffer-protected information against
him; he instead directly introduced the concession to
the District Judge in order to affirmatively present his
own mitigation argument. Faced with these circum-
stances, the district court correctly concluded that
Schuster “admitted it [the distribution] outside the prof-
fer.” Sentencing Tr. at 17.3


2
  (...continued)
“Hello Alex” series. But that letter was sent before the entry
of the proffer agreement, which is dated August 22, and the
August 8 letter itself makes no mention of proffer protection.
We thus reject Schuster’s reliance on this earlier letter as
the basis for the proffer-protection argument.
3
  To the extent that Schuster also premises his argument on
Federal Rule of Evidence 410(a), for the same reasons we
reject the proffer-protection argument, we conclude that the
                                                (continued...)
No. 11-3338                                              9

  We note too our agreement with the district court that
the content of the photos themselves showed that
Schuster prepared the photos for distribution. Sentencing
Tr. at 18. Schuster wrote messages to the intended
recipient on note cards, and then placed those cards on
the victim’s body in order to convey the messages via the
photos themselves. The district court could reasonably
infer that Schuster carried out his plain intent and
actually sent the messages to “Alex.” 4 The finding of
distribution is affirmed.


B. Distribution as Relevant Conduct
  Schuster’s next argument is that, if we were to over-
turn the finding of distribution on the “Hello Alex”
series, then Schuster’s other distributions of other child
pornography did not qualify as “relevant conduct,” for
Sentencing Guidelines purposes, to the offense of con-
viction (the distribution of the “Hello Alex” series).
USSG § 1B1.3(a)(1)(A). As we have explained, however,



3
  (...continued)
letter to the District Judge was not “a statement made
during plea discussions with” the prosecutor. Fed. R. Evid.
410(a)(4).
4
  What’s more, the government also presented evidence that
Schuster had distributed other child pornography to
Mikelsons, Presentence Report ¶¶ 12, 13, so Schuster had
not confined his conduct only to manufacturing and down-
loading.
10                                                  No. 11-3338

we affirm the finding of distribution on the “Hello Alex”
series, so there is no need to address this issue.


C. Finding of Child Pornography
  Schuster’s third argument is that the district court erred
in finding that the “bathtub” series of photos included
an image of child pornography. This finding had an
impact on sentencing because the parties treated the
“bathtub” series as the equivalent of a potential separate
count of conviction, as dictated by Sentencing Guideline
§ 2G2.1(d)(1) and application note 5 to that guideline.5
This in turn tagged Schuster with, in Sentencing Guide-
lines parlance, an extra “Unit,” resulting in an one-level
increase in the offense level. USSG § 3D1.4.6



5
  The defendant did not contest that the “bathtub series” was
relevant conduct to the offense of conviction. See USSG
§ 2G2.1(d)(1) (treat separate minor as a separate count of
conviction if “offense involved” more than one minor); see id.
appl. n.5 (“if the relevant conduct of an offense of conviction
includes more than one minor being exploited, whether specifi-
cally cited in the count of conviction or not, each such
minor shall be treated as if contained in a separate count
of conviction”).
6
   As it turns out, without the one extra level, Schuster’s total
adjusted offense level would be 44, which would ordinarily
still call for a life sentence under the advisory Guidelines (he
was in criminal history category I). The statutory maximum
was 30 years’ imprisonment, so that became the Guidelines
                                                   (continued...)
No. 11-3338                                                11

  According to Schuster, the “bathtub” series did not
show “sexually explicit conduct,” which is defined in
18 U.S.C. § 2256(2). The government argued, and the
district court agreed, that one of the images did show
a “lascivious exhibition of the genitals.” 18 U.S.C.
§ 2256(2)(A)(v). Whether an image depicts a “lascivious
exhibition of the genitals” is an intensely fact-bound
question. United States v. Russell, 662 F.3d 831, 843 (7th
Cir. 2011) (jury was instructed to consider a variety
of factors, and the district court “properly admonished
the jury that it was not confined to these factors . . ., that
the government was not required to prove that each
of these factors was present, and that it was for the jury
to decide the importance of any one factor.”) Indeed,
“the question is left to the factfinder to resolve, on the
facts of each case, applying common sense,” id., so we
will review only for clear error, despite Schuster’s argu-
ment for de novo review.
  Remember that this series shows three young boys
in a bathtub. In the image at issue, a two-year-old boy
is squatting in the tub, and the image shows him from
the chest-down to his knees. The photo is taken from
a perspective that is above the boy, on a downward
angle, and shows the boy’s genitalia. It is true that not
every nude photograph is a “lascivious” one. E.g., United



6
  (...continued)
range, USSG § 5G1.1(a), and would be the range with or with-
out the extra level, but the government does not argue that
the one-level increase was harmless.
12                                               No. 11-3338

States v. Griesbach, 540 F.3d 654, 656 (7th Cir. 2008). A
lascivious exhibition “is one that draws attention to the
genitals or pubic area of the subject ‘in order to excite
lustfulness or sexual stimulation in the viewer.’ ” United
States v. Russell, 662 F.3d 831, 834 (7th Cir. 2011) (quoting
United States v. Knox, 32 F.3d 733, 745 (3d Cir. 1994)).
Put another way, “the focus of the image must be on
the genitals or the image must be otherwise sexually
suggestive.” Greisbach, 540 F.3d at 656; Russell, 662
F.3d at 843. In the parties’ dispute over whether the
bathtub photo depicts a lascivious exhibition, both
Schuster and the government are content to rely on the
now well-known but still-debated factors set forth in
United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986):
     (1) whether the focal point of the picture is the
     minor’s (or another person’s) genitalia;
     (2) whether the setting or pose is customarily associ-
     ated with sexual activity;
     (3) whether the minor’s pose is unnatural given his
     or her age;
     (4) whether the minor is fully or partially nude;
     (5) whether sexual coyness or willingness to engage
     in sexual activity is suggested; and
     (6) whether the visual depiction is intended or de-
     signed to elicit a sexual response in the viewer.
  We have neither endorsed nor rejected the Dost
factors, Russell, 662 F.3d at 843, and in light of the par-
ties’ acceptance of the factors for this appeal, once
No. 11-3338                                                13

again we need not decide one way or the other. What is
important to this appeal, however, is that “the intent
and motive of the photographer can be a relevant con-
sideration in evaluating” images. Id. at 843-44 (citing
United States v. Arvin, 900 F.2d 1385, 1391 (9th Cir. 1990),
and United States v. Burt, 495 F.3d 733, 741 (7th Cir.
2007)). As we noted in Russell, “although it is the
sexually suggestive nature of a photograph of a minor
which distinguishes a depiction of simple nudity from
a lascivious exhibition of the genitals, children typically
are not mature enough to project sexuality consciously;
instead, as the Ninth Circuit [in Arvin] has pointed out,
it is often the photographer who stages the picture in
such a way as to make it sexually suggestive.” 662 F.3d
at 843-44 (citation omitted). Thus, in some circum-
stances, the intent and motive of the photographer, by
putting the images in context, place an important gloss
on whether the relevant factors point to lasciviousness.
Id. at 844.
  Here, the district concluded that Schuster’s intent was
to focus on the genitals, thereby creating a sexually sug-
gestive photo. In reaction to the government’s descrip-
tion of the photo as a “close-up photo of a little boy’s
privates,” the district court agreed, stating that “[i]t looks
to me as if that was the whole intention of the picture.”
Sentencing Tr. at 21. The district court went on to find
that “[i]t’s definitely a picture focusing on the genitalia,”
specifically remarking that “[i]t’s not the whole body.”
Sentencing Tr. at 22 (emphasis added). Schuster does
not dispute that the boy’s genitalia are shown but his
head is not, which undermines his argument that the
14                                             No. 11-3338

photo is of the same ilk as common photos showing
kids playing in a bathtub. This photo did not capture
the joy on the face of a child playing in the tub.
  As noted, Schuster does argue that the setting—kids
playing in the bathtub—points against a finding of lascivi-
ousness. It may be true, as the government concedes, that
“[s]tanding alone, the setting [the bathtub] is not com-
monly associated with sexual activity. But showers
and bathtubs are frequent hosts to fantasy sexual en-
counters as portrayed on television and in film.” United
States v. Larkin, 629 F.3d 177, 183 (3d Cir. 2010). So even
this factor does not necessarily weigh in Schuster’s favor.
  The district court’s sensible reliance on the photo’s
failure to show the boy’s whole body, and the resulting
focus on the genitals, would be enough to survive clear
error review, but there is more. Above all, Schuster’s
intent and motive in photographing the boy in that
specific way also support the district court’s finding. The
evidence was plentiful that Schuster collected child
pornography (he called it an “addiction to child pornog-
raphy”) and had a sexual interest in young boys.
That sexual interest sheds light on why Schuster took
the photograph of a nude boy’s genitals, and whether
the image is sexually suggestive rather than, as Schuster
argues, some sort of innocent mistake. In addition to
this sexual interest in young boys generally, the govern-
ment also presented evidence that Schuster had a
sexual interest in this boy specifically. According to the
boy, Schuster pulled down the boy’s pants and asked
to touch the boy’s “privates.” PSR ¶ 30. The boy told
No. 11-3338                                            15

Schuster “no,” but Schuster “did it anyway.” Id. The
victim went to the bathroom, told Schuster he did not
need help, but Schuster rubbed the boy’s penis with
toilet paper when the boy was done using the bathroom.
Id. Schuster argues that he was simply trying to help
the boy clean up after going to the bathroom, but
the boy’s description of the contact proves otherwise.
Schuster’s intent and motive support the district court’s
finding, and we conclude that the district court did not
clearly err in finding that the photo depicted the
lascivious exhibition of genitals.


D. Reasonableness of the Sentence
  Lastly, Schuster challenges the reasonableness of the
sentence. He first launches a broadside attack on the
Sentencing Guideline that governs offenses involving
the manufacturing of child pornography, USSG § 2G2.1.
According to Schuster, the guideline ought not be given
the same type of consideration that district courts give
to other guidelines because § 2G2.1 does not reflect the
Sentencing Commission’s expertise and empirical data-
gathering efforts, but instead reflects congressional com-
mands in the form of direct legislative amendments to
the Guidelines. Schuster’s argument does not account
for the possibility that Congress itself may have studied
the problem of child pornography. At any rate, even if
a district court chose, as it may, to disagree with the
policy choices that underlie a particular Guideline, it
does not follow that other district courts must give less
regard to that Guideline. United States v. Maulding, 627
16                                              No. 11-3338

F.3d 285, 287-88 (7th Cir. 2010) (per curiam) (rejecting
similar challenge to the receipt, possession, and distribu-
tion guideline); see also United States v. Huffstatler, 571
F.3d 620, 622-23 (7th Cir. 2009) (per curiam).
  Schuster presents a more case-specific argument, con-
tending that the district court did not adequately
consider the controlling sentencing factors in 18 U.S.C.
§ 3553(a). It is not entirely clear whether Schuster
intends to challenge the sentence as procedurally unrea-
sonable, as substantively unreasonable, or both. We
review a claim of procedural error de novo, and a chal-
lenge to the sentence’s substantive reasonableness for
an abuse of discretion. United States v. Mantanes, 632
F.3d 372, 374 (7th Cir. 2011). In light of the district
court’s careful consideration of the § 3553(a) factors,
neither claim has merit.
  The district court gave more than meaningful consider-
ation of the § 3553(a) factors, and thus committed no
procedural error. During its extended explanation of
the sentence, the district court explained the advisory
Sentencing Guidelines calculation, which pegged the
total adjusted offense level at 45. The district court recog-
nized that, because of the statutory maximum of
thirty years of imprisonment, the Guidelines range
was instead set by that maximum. Sentencing Tr. 43-45.
The district court aired its concern with the Sentencing
Guideline for possession of child pornography, USSG
§ 2G2.2, but noted that the court was less concerned
with the severity of the Guideline that applied to
Schuster, who made child pornography. Beyond the
No. 11-3338                                             17

Guidelines calculation, the district court detailed the
aggravating circumstances of the “horrific offense,” and
yet discussed at length the “very good side” of Schuster.
Sentencing Tr. at 41. In explaining the “good side” of
Schuster, the district court considered the strong family,
friend, and community support that remained firmly
in Schuster’s camp, even though the supporters knew
what Schuster stood convicted of. Sentencing Tr. at 41 (“It
is quite amazing . . . that there are so many people in
this courtroom who are here to support you.”) The
district court noted Schuster’s difficult childhood, his
perseverence through financial struggles, and his ability
to provide for his own family through steady employ-
ment. Sentencing Tr. at 45-46. Also in Schuster’s favor,
the district court acknowledged that Schuster had
accepted responsibility, and the court recognized
Schuster’s cooperation with the Dutch law-enforcement
officials who were investigating Mikelsons. Sentencing
Tr. at 42. The government had put a value on that coopera-
tion, seeking a sentence somewhere in the Guidelines-
range equivalent of offense level 39, which is 262 to 327
months’ imprisonment. Sentencing Tr. at 25. Ultimately,
after explaining all these factors (and more), the district
court chose a sentence of 262 months’ imprisonment.
The detailed discussion refutes any contention of proce-
dural error.
  Nor was the sentence substantively unreasonable.
Based on the factors relied on by the district court,
the sentencing judge acted well within its discretion in
choosing the nearly 22-year imprisonment term. We
presume the reasonableness of a within-Guideline sen-
18                                            No. 11-3338

tence, including Guidelines ranges generated by the
sexual exploitation guidelines. Mantanes, 632 F.3d at 377.
Here, the sentence was around eight years under the
advisory Guidelines of thirty years (as set by the
statutory maximum). Plus, as the district court
explained, there were significant aggravating circum-
stances: a horrific offense, committed thrice over with
three different young victims, two of whom were related
to Schuster. We cannot say that Schuster has overcome
the presumption of reasonableness.


                           III.
  For the foregoing reasons, we A FFIRM the sentence
imposed by the district court.




                          2-4-13
