7th Circuit affirms deferral on sentencing request

February 9, 2017

An Indiana federal judge appropriately deferred judgment on a convicted child molester’s request for concurrent state and federal sentences because the state court was presented with additional facts that were relevant to sentencing, the 7th Circuit Court of Appeals decided Wednesday.

After photos of 6-year-old Jane Doe posing nude in a sexually provocative position were found on Kevin Hoffman’s phone in September 2013, police were notified and a subsequent search of the phone revealed 10 deleted photos of Doe naked in various poses. Hoffman was arrested and indicted on federal charges of sexual exploitation of a child and possession of child pornography in interstate commerce.

Although Hoffman’s federal trial was centered on the one-day events which led to the discovery of the photos, Doe revealed during testimony at trial that Hoffman repeatedly forced her to perform sexual acts on him. However, because the federal trial was limited to only the one-day, September 2013 occurrences, Doe’s testimony about ongoing abuse was limited.

After Hoffman’s first sentencing hearing, Judge Robert Miller of the U.S. District Court for the Northern District of Indiana increased Hoffman’s base offense level pursuant to U.S. Sentencing Guidelines 2G2.1 and 4B1.5(b). The judge sentenced Hoffman to 25 years in prison with 10 months of supervised release.

While Hoffman’s appeal was pending in 2015, the 7th Circuit Court of Appeals handed down decisions in two cases that bore on the validity of the conditions of supervised release that were imposed on Hoffman. As a result of those federal court decisions, Hoffman was resentenced in district court to 25 years.

But prior to his federal resentencing, a jury in state court convicted Hoffman of child molestation related to the ongoing abuse Doe revealed during her federal testimony. In the face of his additional sentence, Hoffman argued before the district court that because his sentence was enhanced under 4B1.5(b)(1), he was entitled to a concurrent sentence under U.S. Sentencing Guidelines section 5G1.3(c).

But Miller rejected Hoffman’s argument for concurrence, holding that the sentencing guidelines are advisory, that the guidelines did not apply to his sentencing enhancement and, finally, that even if the guidelines did apply, the court would have sentenced him consecutively. Rather than choosing to impose a sentence consecutively, Miller declined to rule on the issue.

Hoffman was sentenced in state court to 50 years, which was imposed consecutively to his federal sentence. On appeal before the 7th Circuit, Hoffman sought the vacation of his sentence and requested re-sentencing, arguing that Miller’s denial of his request for concurrent sentences was an abuse of discretion.

The 7th Circuit rejected Hoffman’s request Wednesday, with Judge Daniel Manion writing for the panel that Miller was correct in his assessment that Hoffman’s enhancement is not considered “relevant conduct” for the purposes of section 5G1.3(c).

Specifically, Manion wrote that the “relevant conduct” that can lead to concurrent state and federal sentences applies to Chapter 2 and Chapter 3. Although Hoffman’s sentence was partially enhanced under Chapter 2, the enhancement he raised to the district court fell under Chapter 4, which did not apply, Manion said.

Further, Manion wrote that Miller’s deferral on the concurrence issue was “entirely appropriate, and to be encouraged, when the district judge has reason to believe that a state judge might have additional facts before it relevant to sentencing.” To that end, the panel noted that the jury in the federal case could not consider the additional facts brought to light in Doe’s testimony about the ongoing abuse, but the state jury could. Those facts were relevant to the state court’s sentencing, Manion said.

The case is United States of America v. Kevin A. Hoffman, also known as Kevin Hoffman, 16-1595.


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