                      NONPRECEDENTIAL DISPOSITION
                        To be cited only in accordance with
                                Fed. R. App. P. 32.1



           United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                              Argued October 4, 2006
                             Decided January 25, 2007

                                       Before

                          Hon. JOHN L. COFFEY, Circuit Judge

                          Hon. TERENCE T. EVANS, Circuit Judge

                          Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 05-2486

UNITED STATES OF AMERICA,                       Appeal from the United States District
              Plaintiff-Appellee,               Court for the Northern District
                                                of Indiana, Hammond Division
      v.
                                                No. 98 CR 37
RALPH W. ANGLE,
            Defendant-Appellant.                James T. Moody,
                                                Judge.


                                     ORDER


       This is the third time Ralph Angle appeals his sentences for receiving and
possessing child pornography and soliciting sex with a minor. Twice before we
remanded for resentencing because the district court did not establish the reliability
of evidence used to justify an overall sentence well above the guidelines range.
Because on remand the district court once again failed to follow our directive to make
reliability findings with respect to the evidence used to justify Angle’s sentence and
because it used the same evidence to justify both an upward adjustment under the
pattern and practice guideline, see U.S.S.G. § 2G2.2(b)(5), and an above-range
sentence, we vacate and remand.
No. 05-2486                                                               Page 2

                                    Background

       Angle was convicted after a bench trial before Judge Lozano of one count of
attempting to receive child pornography, 18 U.S.C. § 2252(a)(2), one count of possession
of child pornography, id. § 2252(a)(4)(B), and one count of using interstate commerce
to persuade, induce, entice, or coerce a minor to engage in an illegal sexual act, id.
§ 2422(b). Judge Lozano originally sentenced him in 1999 to concurrent terms of 325
months’ imprisonment on the receiving count and 120 months each on the other two
counts, an overall sentence above the guidelines range. In departing from the
guidelines, Judge Lozano considered a 1977 conviction for sodomy that was too old to
be counted in Angle’s criminal history score. The sentencing court also referred
vaguely to criminal history that it couldn’t consider “because there was not a
conviction.” Evidently the court was referring to testimony from these government
witnesses: a postal inspector testified that a teenage boy in Georgia reported having
sex with Angle; an employee at an Indiana gym testified that she received complaints
from parents about Angle approaching their sons at the gym; and an Indiana police
officer testified that a parent reported that Angle had showered with her son after
meeting him at the gym. The following year, we vacated the sentences and remanded
for resentencing because the district court did not explain how the degree of its upward
departure was linked to the structure of the guidelines. United States v. Angle, 234
F.3d 326, 344 (7th Cir. 2000).

        At the resentencing hearing in 2001, Judge Lozano again imposed an overall
sentence of 325 months’ imprisonment—well above the guidelines range of 97 to 121
months. The court justified its departure above the guidelines range by referring to
Angle’s extensive history of inappropriate contact with children including the incidents
and evidence presented at the original sentencing. In addition, the court found that
Angle had molested his nephew, niece, and girlfriend’s daughter and traveled to Mexico
to have sex with children. The government introduced some new evidence including
a letter from the wife of Angle’s nephew, who asserted that Angle had molested several
of his young relatives. The government also introduced an email in which Angle brags
about having sex with “Tommy,” the name of the boy he allegedly molested in Georgia.
Finally, the postal inspector testified that he had viewed videotapes found in Angle’s
possession that depict Mexican boys performing sex acts (Angle does not appear in the
videos) and that Angle’s accomplice in the Mexico trip told him that Angle had been
involved in producing the tapes.

        We vacated and remanded for the second time in 2003, this time holding that
the district court had not made reliability findings regarding the evidence used to
justify the upward departure. United States v. Angle, 315 F.3d 810, 812-13 (7th Cir.
2003). We expressed particular concern that the district court had relied on
uncorroborated allegations that Angle had molested numerous children including “his
girlfriend’s daughter, his niece and nephew, and children in Mexico.” Id. at 813. For
example, we pointed out that the only evidence supporting the allegations that Angle
No. 05-2486                                                                 Page 3

molested family members was a letter by the wife of Angle’s nephew who did not
provide specific details about the incidents. Id. In addition, we noted that the only
evidence of Angle’s activities in Mexico was “a videotape of children committing lewd
acts in which Angle did not appear.” Id. We concluded that “because these alleged
incidents of molestation are uncorroborated, the district court was required to make
specific findings regarding the reliability of the evidence before it used the evidence to
support an upward departure.” Id. At our direction, see Cir. Rule 36, the case was
reassigned to Judge Moody on remand.

      Judge Moody held a second resentencing hearing in the spring of 2004. This
time the government introduced one new piece of evidence: the testimony of Karen S.,
whom Angle allegedly molested while he was dating her mother. The court continued
the proceedings, however, to await the outcome of United States v. Booker, 543 U.S.
220 (2005). When Judge Moody finally pronounced sentence in May 2005, the court
imposed 300 months on the receiving count (instead of 325 months as before) and
reimposed the concurrent 120-month sentences on the other two counts. It is this
sentence that Angle now appeals.1

                                      Analysis

       Angle makes several arguments challenging the length of his sentence, but
his strongest one is that the district court again failed to make reliability findings
with respect to the evidence used to justify a sentence above the guidelines range.
District courts are required to follow this court’s instructions on remand, see United
States v. White, 406 F.3d 827, 831 (7th Cir. 2005); United States v. Buckley, 251
F.3d 668, 669 (7th Cir. 2001); Waid v. Merrill Area Pub. Sch., 130 F.3d 1268, 1272
(7th Cir. 1997), but Judge Moody did not adhere to the panel’s instructions
regarding reliability findings.

      At the second resentencing, Judge Moody relied on much the same evidence
that Judge Lozano used to justify the upward departure imposed at Angle’s first
resentencing. Specifically, the court again considered allegations that Angle


      1
        The day after oral argument, counsel for Mr. Angle notified us by letter that he
had advised his client of the possibility that he could face a higher sentence if his case
is remanded yet again for resentencing. Assuming no change in calculation, the
Guidelines range for Mr. Angle’s offenses under the current version of the Guidelines
is substantially higher than the range that he has faced to this point. The government
has advised us that Mr. Angle will be resentenced under the Guidelines currently in
effect; after United States v. Demaree, 459 F.3d 791 (7th Cir. 2006), petition for cert.
filed, No. 06-8377 (U.S. Dec. 11, 2006), this would not offend the ex post facto clause.
Although counsel stated that Mr. Angle was “evaluating his options,” he has not
withdrawn his appeal.
No. 05-2486                                                             Page 4

molested his girlfriend’s daughter, had sex with a teenage boy in Georgia, and
pursued children at a gym in Indiana. The court also continued to rely on Angle’s
activities with Mexican children. Although the court no longer asserted that Angle
had traveled to Mexico to have sex with children, it concluded that Angle had made
videos of Mexican children performing sexual acts. The court did not explain why
any of the evidence it considered was reliable and, with the exception of Karen S.’s
testimony, no new evidence was presented to bolster any of these allegations of
inappropriate contact with children.

       The Supreme Court’s decision in Booker did not render our instructions in
the previous remand moot. Although Booker made the sentencing guidelines
advisory and thus made it easier for district courts to sentence defendants outside
the guidelines range, courts still must provide reasons for an above-range sentence
that are connected to the factors in 18 U.S.C. § 3553(a). See United States v.
Rodriguez-Alvarez, 425 F.3d 1041, 1046 (7th Cir. 2005), petition for cert. filed, No.
05-8615 (U.S. Jan. 5, 2006); United States v. George, 403 F.3d 470, 472-73 (7th Cir.),
cert. denied, 126 S. Ct. 636 (2005). Furthermore, the need for the court’s sentencing
decisions to be based on reliable evidence has not changed. See United States v.
Birk, 453 F.3d 893, 899 (7th Cir. 2006); United States v. Sliman, 449 F.3d 797, 802
(7th Cir. 2006) (citing U.S.S.G. § 6A1.3(a)); see also United States v. Krueger, 415
F.3d 766, 779 (7th Cir. 2005).

       Tellingly, the government has never attempted to argue that Judge Moody
made reliability findings. Instead it has argued that he was not required to because
Angle did not contest the fact that the various incidents used to support the
sentences occurred. Regardless of whether this is an accurate characterization of
the record, the government’s argument cannot be sustained. Our previous opinion
instructing the district court to make reliability findings was the law of the case.
Neither the district court nor the government is permitted to ignore it simply
because they think it was erroneous. See Buckley, 251 F.3d at 669 (appellate court’s
ruling binds district court on remand absent “extraordinary circumstances”).
Therefore the district court’s failure to make reliability findings with respect to
Angle’s uncharged conduct requires a remand.

       In addition, as Angle points out, the district court used much of this same
conduct both in calculating his offense level, see U.S.S.G. § 2G2.2(b)(5) (formerly
§ 2G2.2(b)(4)) (providing for a five-level upward adjustment for defendants who
exhibit a pattern of sexual abuse) and in justifying a sentence above the guidelines
range. In particular, the court used Angle’s activities in Georgia and at the gym in
Indiana to justify the upward adjustment under § 2G2.2(b)(5). The court also used
Angle’s 1977 conviction and an additional conviction from the 1980s for molesting a
nephew to justify the adjustment even though these convictions were also used in
the second resentencing to justify an above-range sentence. This sort of double-
counting is permissible under the guidelines but only if the pattern-of-activity
No. 05-2486                                                              Page 5

adjustment does not adequately take account of the seriousness of the defendant’s
conduct. See U.S.S.G. § 2G2.2, cmt. n.6; United States v. McCaffrey, 437 F.3d 684,
688-89 (7th Cir. 2006) (upholding district court’s decision to impose both
§ 2G2.2(b)(5) adjustment and an adjustment for failure of criminal history category
to adequately reflect defendant’s criminal history when defendant molested dozens
of children while a priest); United States v. Griffith, 344 F.3d 714, 718-19 (7th Cir.
2003) (upholding district court’s decision to impose both § 2G2.2(b)(5) adjustment
and upward departure when defendant possessed pornographic photographs that
were the worst judge had ever seen in his 35-year legal career).

       The district court did not explain why the incidents it used to justify the
§ 2G2.2(b)(5) adjustment are serious enough to also justify a 300-month sentence,
and this is yet another one of Angle’s arguments that the government does not
squarely counter. Although Angle was related to one of his victims, he is not
comparable to a priest who uses his religious position to hide his activities. The
district court has also not suggested that there is anything unusual about the
incidents that makes them more egregious than sexual exploitation of children
generally. The district court may not use these incidents to support an above-range
sentence on remand unless it gives a detailed explanation of why it thinks they
were not sufficiently accounted for by the § 2G2.2(b)(5) adjustment. For our part,
however, we do not see anything in this record, even after three sentencing
hearings, to suggest that these incidents were so serious that they could justify both
a § 2G2.2(b)(5) adjustment and a sentence significantly above the guidelines range.

       The rest of Angle’s arguments are without merit, but one deserves mention
for the sake of clarifying the proper procedure for the district court to follow on
remand. Angle challenges the district court’s decision to allow the government to
present additional evidence of his history of improper contact with children, namely
Karen S.’s testimony, at his resentencing. Indeed the district court did exclude
some of the government’s evidence on the basis of our decision in United States v.
Wyss, 147 F.3d 631, 633 (7th Cir. 1998), which holds that the government is not
entitled to a second chance to meet its burden of proof on remanded sentencing
issues. Karen S’s testimony was permitted on the ground that the government was
unable to locate her before the earlier sentencing hearings. This decision by the
district court is questionable. Other cases in this circuit have cited Wyss for the
proposition that the government may not submit additional evidence on remand to
meet its burden of proof. See United States v. Roach, 372 F.3d 907, 909 (7th Cir.
2004), vacated on other grounds, 543 U.S. 1180 (2005); United States v. Noble, 367
F.3d 681, 682 (7th Cir. 2004); United States v. Sumner, 325 F.3d 884, 888 (7th Cir.
2003).

      But Wyss itself relies for its holding on United States v. Wilson, 131 F.3d
1250 (7th Cir. 1997), a case in which the government did more than simply
introduce new evidence on remand. It made a completely new argument to justify
No. 05-2486                                                               Page 6

increasing Wilson’s offense level. Id. at 1253. The government in Angle’s case was
not attempting to make a new argument for increasing Angle’s sentence by
introducing Karen S’s testimony. It was introducing new evidence to support the
same argument it had been making all along (that Angle’s past conduct with
children justifies an above-range sentence).

       More importantly, Wyss is also inconsistent with, and fails to discuss, an
earlier case from this court, United States v. Polland, 56 F.3d 776 (7th Cir. 1995).
This case, which Angle does not mention, holds that even when a case is subject to a
limited remand for resentencing, the district court is still operating on a clean slate
in the sense that it can consider de novo any open issues. Id. at 779. Although we
acknowledged in Polland that courts are often limited in the issues they may
consider on remand, we expressly stated that they may consider any relevant
evidence on issues that have been specifically remanded if that evidence could have
been heard at the first hearing. Id. In addition, the Supreme Court has held that
allowing the prosecution another opportunity on remand to prove a sentencing
enhancement in a noncapital case does not violate the Double Jeopardy Clause.
Monge v. California, 524 U.S. 721, 730-34 (1998). This decision is not acknowledged
in Wyss or the later cases.

       We remanded so the district court could make reliability findings on the
evidence of Angle’s uncharged conduct. By introducing Karen S.’s testimony, the
government was attempting to aid the district court in doing that. Therefore, the
district court did not err in allowing the government to present Karen S.’s
testimony regardless of whether the government could have located her before the
earlier sentencing hearings, and the government should not be prevented on
remand from submitting additional evidence to support allegations that it has
already made regarding Angle’s inappropriate conduct with children.

       For the above reasons, we VACATE Angle’s sentence and REMAND so the
district court can make proper reliability findings on the evidence it used to justify
its above-range sentence and explain why it believes Angle’s past conduct with
children justifies both a § 2G2.2(b)(5) adjustment and a sentence above the
guidelines range.
