7th Circuit upholds Fogle’s above-guidelines sentence

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The 7th Circuit Court of Appeals affirmed former Subway pitchman Jared Fogle’s 188-month sentence Thursday afternoon for distributing and receiving, as well as conspiring to distribute and receive child pornography. Fogle challenged his sentence after the District Court imposed one above the sentencing guidelines.

Fogle was arrested and pleaded guilty to his charges in August 2015 after an investigation beginning in March of that year revealed that Fogle was receiving child pornography from a close friend, Russell Taylor. The investigation also found Fogle engaged in commercial sex acts with two minors in New York City and offered finder’s fees to adult escorts to provide him with access to minors for commercial sex.

The Southern District Court, Indianapolis Division sentenced Fogle on Nov. 19 to 188 months, explaining Fogle’s conduct deserved an above-guidelines sentence. His sentence was above the advisory guidelines range of 135 to 168 months. In his plea deal, the government agreed to recommend a sentence of not more than 151 months.

Fogle argued the District Court’s sentence was flawed for three reasons. He claimed the court held him accountable for Taylor’s production offenses but the 7th Circuit, in a decision written by Judge Joel Flaum, disagreed. Flaum wrote the District Court was very clear about what it was sentencing Fogle for.

“There is no evidence in the record that the district court was confused about the facts or determined to punish Fogle for production, as Fogle alleges,” Flaum wrote. “Moreover, it is evident that the district court sentenced Fogle only for distribution and receipt: Fogle’s base offense level would have been much higher had the district court treated him as a producer, and would have resulted in a greater sentence than that actually imposed.”

Next, Fogle argued that his sentence was improperly enhanced based on fantasies and acts he did not carry out, but Flaum wrote the court “cannot accept” that argument. The District Court properly discussed Fogle’s attempts to find minors, Flaum wrote, and appropriately considered “the perverse nature and circumstances of the offenses.”

Fogle claimed he did not actively collect the pornography from the internet or solicit it from Taylor. Instead he claimed Taylor gave Fogle the images, then Fogle distributed it in an isolated private setting to one person, but again the 7th Circuit was unconvinced.

“Because there is no question that Fogle willingly received and distributed this material, the District Court did not err by considering these specific details in assessing Fogle’s sentence,” Flaum wrote.

Fogle also argued the District Court did not provide enough explanation for his above-guidelines sentence. He claimed his history and characteristics do not support the upward variance, the District Court erroneously relied on conduct that formed the basis for his conviction, and characterized the District Court’s reasoning as “puzzling.”

However, Flaum wrote the District Court’s explanation was more than good enough to justify its actions.

“The district court provided a thorough explanation for its imposition of an above-guidelines sentence, which is all that was required,” Flaum wrote.

The case is United States of America v. Jared S. Fogle, 15-3770.

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